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THE  LIBRARY 

OF 

THE  UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 

SCHOOL  OF  LAW 


'jaffS IfflBl  BJP 

milium: |l iiilillMUMilillI'lillllllil 

liilDMi.nuiiii.iimmiLm 


//*£&« 


THE 


PRINCIPLES 


PLEADING. 


B.    TUCKER. 


PROFESSOR   OF  LAW   IN   THE   UNIVERSITY   OF  WILLIAM   AND  MART,  VIRGINIA. 


v.* 

BOSTON:  *  -       ■ 

CflARLES     C.    LITTLE    &    JAMES    BRO'V 


\%4t> 


j 

<5 


Entered  according  to  Act  oi"  Congress,  in  the  year  1846,  by 

Beverley  Tucker, 

in  the  Clerk's  Office  of  the  District  Court  of  the  Eastern  District  of  Virginia. 


Printed  at  George  Coolidoe's  Steam  Power  Printing 
Establishment,  130  Washington  St.,  Boston. 


^ 


in 


SIMON  GREENLEAF,  ESQ., 

ROYAL    PROFESSOR    OF    LAW    IN    THE    HARVARD    UNIVERSITY,    OF 
CAMBRIDGE,    MASSACHUSETTS. 


My  Dear  Sir, 

I  gladly  avail  myself  of  your  permission  to  dedicate  to 
you  a  little  work,  which,  but  for  your  kind  encouragement, 
would  never  have  met  the  public  eye. 

There  is  nothing  in  the  character  of  our  profession  more 
striking  or  more  engaging,  than  the  generous  interest  which 
each  member  of  it  takes  in  the  labors  and  success  of  others, 
and  the  readiness  of  every  one  to  add  his  '  hurrah,'  as  Locks- 
ley  says,  when  he  sees  a  good  blow  struck,  even  by  the  hand 
of  a  rival.  The  prevalence  of  this  spirit  affords  the  best  hope, 
that,  by  the  cooperation  of  those  qualified  for  the  task,  the 
ruins  of  our  Jurisprudence  may  be  again  built  up  into  a  system. 
To  succeed  in  this  object,  it  is  necessary  that  they  who  engage 
in  it,  while  they  labor  to  restore  what  is  valuable,  should 
frankly  discard,  as  mere  rubbish,  all  the  mystical  and  cum- 
brous forms,  which,  in  the  actual  state  of  the  Law,  are  super- 
fluous ;  and  endeavor  to  render  what  may  remain  into  the 
vernacular  tongue  of  the  present  day.  To  do  this  is  not  to 
innovate,  but  to  restore.  To  reject  words  which,  at  this  day, 
convey  no  meaning,  or  a  false  one,  to  the  mind  of  the  uniniti- 
ated, and  to  substitute  for  them  other  words  which  all  men 
will  understand  alike,  is  but  to  do  what  our  ancestors  did, 
when  they  rendered  the  Latin  formulae  into  English.  The 
English  of  that  day  is  now,  in  many  instances,  less  intelligible 
than  the  Latin ;  and  a  new  translation  may  not  be  amiss, 


74007? 


IV  DEDICATION. 

whereby  the  matter  of  the  old  forms  may  be  expressed  in 
such  words  as  our  ancestors  would  probably  have  used,  had 
the  language,  as  now  spoken,  been  the  language  of  their  day. 
Very  slight  changes,  of  this  sort,  would  dispel  all  that 
appearance  of  mysticism,  which  offends  and  alarms  the 
unlearned,  by  giving  to  the  proceedings  of  the  Courts  the 
appearance  of  an  artful  juggle. 

But  farther  than  this  no  man  who  understands  the  science 
of  pleading  can  wish  to  go.  He  sees  in  the  original  system  a 
beauty,  a  symmetry,  and  a  fitness  for  all  the  purposes  of  Jus- 
tice, on  which  it  would  be  idle  to  attempt  any  improvement. 
He  may  see  indeed  that  it  has  been  modified  by  causes,  some 
of  which  ought  no  longer  to  influence,  and  that  it  has  been 
perverted,  sometimes  by  mischievous  ingenuity,  sometimes  by 
mere  blunders.  To  get  rid  of  these  modifications  and  perver- 
sions is  the  task  of  the  reformer ;  and,  when  he  has  done  so, 
he  will  be  pleased  and  surprised  to  find,  that,  in  perfecting 
the  system,  he  has  restored  it;  nearly  to  the  same  condition 
in  which  it  was  five  hundred  years  ago.  Yet  there  is  nothing 
strange  in  this.  It  took  its  rise  in  the  earnest  endeavors  of 
wise  and  able  men,  having  full  power  over  the  subject,  to 
devise  the  means  of  making  the  administration  of  Justice 
between  man  and  man  easy  and  sure.  This  they  did,  by 
feeling  their  way  to  the  object :  not  by  arbitrary  constitutions, 
established  on  reasoning  a  piiori  but  by  cautious  experiment. 
Would  it  not  rather  then  be  strange,  if,  at  this  day,  wise  and 
able  men,  having  the  same  object  in  view,  and  enjoying  all 
the  advantage  of  their  experiments,  should  not  arrive  at  the 
same  result? 

I  am  deeply  sensible  of  my  own  incompetency  to  lead  in 
such  an  enterprise.  You  are  aware  that  nearly  half  of  this  work 
was  written,  as  it  now  stands,  before  I  thought  of  publishing- 
it  :  and  I  have  only  ventured  on  doing  so,  in  the  spirit  of  one 
who  leads  a  forlorn  hope.  I  shall  be  followed  by  those  who 
will  carry  the  day,  though  I  should  be  cut  down  in  the  breach- 
As  to  the  judgment  the  public  may  form  of  my  work,  I  take 
your  approbation  as  earnest  of  what  I  may  hope  to  receive  at 
the  hands  of  those  best  qualified  to  judge.  If  not  disappointed 
of  this,  I  shall  be  rewarded  to  the  utmost  of  my  wish.     The 


DEDICATION.  V 

censure  of  those,  whose  errors  I  have  endeavored  to  expose,  I 
can  hardly  hope  to  escape  :  and  yet  they,  of  all  men,  should 
be  most  thankful  for  the  effort. 

Whether  they  are  magnanimous  enough  to  view  the  case  in 
this  light  or  no,  is  of  far  more  importance  to  them  than  to  me. 
Satis  est  mihi  Equitem  "plaudere.  Of  this  I  cannot  help  enter- 
taining a  cheering  hope,  while  you,  my  dear  Sir,  permit  me 
to  subscribe  myself,  though  personally  unknown  to  you,  what 
I  am,  very  sincerely 

Your  friend, 

B.  Tucker. 

Williamsburg,  March  20,  1846. 


ERE  AT  A. 


Page  1,  line  8,  (from  bottom,)  for  '  introvertible'  read  '■incontrovertible': 

"      9,     "  2,  for  'propositions  '  read  'proposition.' 

"    14,    "  24,  for  '  decises  '  read  '  decisis.' 

"  19,  for  '  Thence '  read  '  Hence' 

"    15,     "  7,  (from  bottom,)  for  '  superflous'  read  'superfluous? 

"    16,    "  1,  (at  top,)  for  'this'  read  'their.' 

"    27,    "  12,  after  '  entry  '  insert '  and.' 

"    28,     "  29,  for  'branches  '  read  '  breaches? 

"    30,    "  4,  for  '  insidious  '  read  '  invidious.' 

"    33,    "  21,  for  'formula  '  read  'formtdce? 

"    35,    "  16,  for  '  Braton '  read  '  Bruton? 

"  21,  after  '  pounds  '  insert '  as.' 

"  1  of  the  note,  for  '  es '  read  '  eo.' 

"    59,    "  20,  for  'palliations'  read  'palliatives? 

"    61,    "  22,  after  'forms '  insert '  fo  £e.' 

"  24,  for  '  attraction'  read  '  attention? 

"    62,    "  29,  for  'powers '  read  'forms.' 

"    64,    "  2,  for  '  the '  read  '  this.' 

"  23,  for  '  le '  read  '  fee.' 

"    65,    "  7,  for  '  in  '  read  '  on? 

"  14,  for  'argument'  read  '  agreement? 

"    70,    "  22,  for 'by'  read  '  the? 

"    71,    "  15,  for  '  arousing '  read  '  reversing? 

"  124,     "  12,  for  '  obligation '  read  '  allegation? 

"  153,    "  17,  for  'belongs'  read  '  belong? 

"  172,    "  18,  for  'purposes '  read  'purpose? 
"  178,    "      1,  for  'J'  read  '  "7.' 

2,  for  '  174 '  read  '  168.' 


THE 


PRINCIPLES  OF  PLEADING. 


The  object  of  all  judicial  proceedings  between  man  and 
man  should  be  twofold. 

1.  To  ascertain  the  rights  of  the  parties,  and  do  present 
justice  between  them. 

2.  To  provide  an  enduring  memorial  of  the  facts 
ascertained  in  the  controversy,  showing  moreover  that  they 
had  been  decided  on,  and  that  all  that  justice  demanded  in 
virtue  of  them,  had  been  done. 

A  system  of  jurisprudence,  framed  with  due  regard  to 
these  objects,  would  incidentally  accomplish  another,  of 
great  importance  not  only  to  the  parties  but  to  the  whole 
community.  The  record  of  each  case  showing  precisely 
what  had  been  the  facts  of  the  case,  and  the  judgment 
rendered  following  immediately  after,  every  such  record 
must  furnish  the  most  introvertible  evidence  of  the  law  of 
such  case,  and  of  all  cases  made  up  of  the  like  facts. 

It  is  not  enough  then  that  present  justice  be  done 
between  the  parties.  It  is  due  to  them  that  the  record 
of  what  has  been  done  shall  be  so  framed,  as  to  prevent 
future  injustice.  This  attention  to  their  rights  is  amply 
rewarded  by  securing  and  perpetuating  evidence  of  the 
law  of  each  particular  case,  by  which  all  may  govern 
1 


2  THE    PRINCIPLES    OF    PLEADING. 

themselves.  In  the  infinite  variety  of  human  transactions, 
all  imaginable  cases  are  brought  under  adjudication,  and 
the  Law  concerning  each  is  ascertained  and  established 
with  an  accuracy  of  detail  to  which  no  code  could  be 
expected  to  descend,  and  a  degree  of  authority  which  could 
not  be  attributed  to  any  treatise.  In  a  government  of 
Laws  such  a  system  of  Jurisprudence  must  be  invaluable. 
It  may  be  doubted  whether  it  is  not  even  indispensable 
to  the  permanent  existence  of  such  a  government.  It  is 
absurd  to  say  that  the  law  governs,  where  the  law  itself  is 
uncertain,  and  therefore  whatever  tends  to  fix  and  ascertain 
it,  tends  to  secure  and  perpetuate  its  supremacy.  If  then, 
as  has  been  truly  said,  'where  there  is  no  law,  there  is  no 
liberty,'  how  jealously  should  a  free  people  guard  a  system 
of  jurisprudence,  by  which  each  particular  case  is  made  to 
furnish  a  perpetual  and  imperishable  record  of  the  law  in 
all  like  cases ! 

It  may  be  doubted  whether  human  ingenuity,  reasoning 
a  priori,  is  equal  to  the  task  of  devising  such  a  system. 
The  ablest  jurists  of  ancient  Rome  and  the  most  accom- 
plished civilians  of  modern  times  have  attempted  it  in  vain. 
The  records  of  Courts  of  Equity  have  always  furnished 
innumerable  cases,  in  which  it  is  impossible  to  ascertain  all 
the  tads  which  the  Chancellor  considered  as  established,  so 
as  to  enable  the  reader,  in  a  remote  age,  to  arrive  at  the 
conclusion:  'such  being  the  facts  such  is  the  law.'  He 
sees  the  judgment,  which  he  understands  to  be  (lie  conclu- 
sion of  tin'  Law  from  some  state  of  facts.  But  what 
pmise  stale  of  facts  was  in  the  contemplation  of  the 
Chancellor  when  pronouncing  his  decision,  he  has  no 
means  of  knowing.     Such  a  system  never  has  existed  any 

where  but  in  England  and  the  United  States,  inherited  by 
the  latter  from  the  former,  where  it  was  the  result  of  long 
and  varied  experience,  ami  repeated  and  patient  experi- 
ment, ami   not  the  work  of   premeditation.     And  yet   it 


THE    PRINCIPLES     OF    PLEADING.  3 

appears  to  have  taken  its  rise  in  an  exceedingly  simple 
process,  to  which  every  prudent  and  sagacious  master  or 
father  of  a  family  resorts,  whenever  called  upon  to  do  jus- 
tice between  those  who  are  subject  to  his  authority.  'What 
is  your  complaint  ? '  is  the  question  asked  of  the  aggrieved 
party.  The  answer  to  this  should  be  a  statement  of  facts. 
'  What  have  you  to  answer  ? '  is  the  question  to  the 
supposed  wrong  doer.  The  answer  to  this  cannot  be 
satisfactory,  unless  it  be  1.  a  denial  of  the  fact  alleged: 
or,  2.  an  admission  of  its  truth,  coupled  with  the  statement 
of  some  new  fact,  which  excuses  or  justifies  the  first : 
or  3.  a  naked  admission,  backed  by  reasons  to  show 
that,  although  the  fact  be  true,  the  complainant  has  no  just 
ground  of  complaint.  In  the  first  of  these  cases  nothing 
remains  but  to  inquire  into  the  truth  of  the  charge.  In 
the  last  to  consider  of  the  sufficiency  of  the  reasons  urged 
in  defence.  The  second  would  lead  to  a  more  protracted 
investigation.  In  that  case,  the  Father  or  Master  will  see 
the  necessity  of  asking  the  aggrieved  party,  what  he  has  to 
say  to  the  matter  of  excuse  alleged  by  the  other.  Here 
again  no  answer  can  be  satisfactory,  but  1.  a  denial  of 
such  allegation  :  or  2.  an  admission  of  its  truth,  coupled 
with  a  statement  of  some  new  fact,  which  shows  the  fact 
so  admitted  to  be  no  excuse  for  the  imputed  wrong : 
or  3.  a  naked  admission,  backed  by  reasons  to  show,  that, 
although  the  allegation  be  true,  it  affords  no  sufficient 
justification. 

'  What  is  the  matter  Tommy  ?  '  '  Jack  took  the  bow 
away  from  me.'  '  What  say  you  to  that  Jack  ?  '  <  Uncle 
Henry  made  it  and  gave  it  to  me.'  '  And  what  say  you 
to  that  Tom.'  '  Uncle  Henry  lent  it  to  me  first,  and  when 
he  gave  it  to  Jack  told  him  I  was  to  keep  it  until  tomorrow.' 
'  Well  Jack  what  do  you  say  to  that  ? '  '  Uncle  Henry  did 
not  tell  me  so.'  It  is  now  time  to  call  on  uncle  Henry  to 
testify,  who  says  he  gave  the  bow  to  Jack  without  any  such 


4  THE    PRINCIPLES    OF    PLEADING. 

qualification.  The  complaint  is  of  course  dismissed ;  and 
whether  poor  Tommy  is  to  be  whipped  for  telling  a  lie,  is 
a  question  belonging  to  criminal  jurisprudence,  with  which 
we  have  nothing  to  do  in  this  place. 

As  between  the  parties  however,  it  is  the  result  of  the 
law  and  fact  of  the  case  that  the  bow  belongs  absolutely 
to  Jack,  and,  but  that  the  father  can  trust  his  memory,  it 
would  be  well,  for  the  future  peace  of  his  family,  to  make 
a  record  of  it.  The  2)aterfamilias  of  a  great  Nation  ought 
not  to  trust  his  memory,  but  should  make  such  a  record. 

"What  better  record  could  be  made,  than  to  write  down 
the  allegations  of  both  parties  from  their  lips,  and  to  add 
to  that  the  result  of  the  evidence  and  the  decision  thereon. 

This  is  precisely  what  the  Kings  of  England  did,  and  it 
is  the  same  that  the  Courts  of  England  now  do,  and  that 
the  Courts  of  the  United  States  pretend  to  do.  That  they 
do  not  do  it  in  fact,  is  the  cause  of  infinite  confusion,  all  of 
which  the  unthinking  charge  upon  the  system  that  the 
Courts  do  not  pursue. 

To  disabuse  the  public  mind,  and  vindicate  the  system 
from  this  injustice,  is  the  object  of  this  essay. 


There  was  certainly  a  time  when  the  King  of  England 
was  the  sole  judge  in  his  own  courts,  and  administered 
justice. in  person;  and  there  are  many  features  of  the 
Common-Law  system  of  pleading,  which  show  that  it  took 
its  rise  at  that  time.  There  is  much  reason  to  believe  that 
it  was,  at  first,  suggested  by  considerations  of  mere  con- 
venience to  the  Court  itself,  and  that  it  was  afterwards 
pursued  and  perfected  with  a  view  to  the  much  more 
important  advantages  which  had  been  found  to  flow  from 
it.  In  the  analysis  of  it  which  I  wish  to  present,  I  propose 
ider  it, 


THE    PRINCIPLES    OF    PLEADING.  O 

1.  In  its  naked  simplicity  as  we  may  suppose  it  to  have 
been  practiced  at  a  time  when  the  King,  sitting  under  a 
tree,  decided  controversies  between  his  subjects,  in  person, 
or  delegated  his  authority  to  do  so,  to  such  of  the  by- 
standers as  he  might  think  proper  to  call  upon  for  that 
purpose. 

2.  As  modified  by  contrivances  introduced  from  time  to 
time  to  compel  the  attention  of  the  parties  to  the  prosecu- 
tion and  defence  of  their  suits,  and  to  save  the  judge  the 
trouble  of  sitting  in  judgment  on  cases  involving  no 
question  of  law  or  fact. 

3.  As  modified  by  the  Trial  by  Jury. 

4.  As  modified  by  the  peculiar  constitution  of  the  English 
courts. 

In  pursuing  this  plan  we  shall  find  many  things  which 
at  this  day  are  superfluous,  even  in  England,  and  some 
quite  unsuited  to  our  institutions.  These  I  shall  carefully 
note ;  and,  in  doing  so,  I  shall  endeavor  to  distinguish 
between  such  as  should  be  simply  swept  away,  such  as 
should  be  retained,  and  such  as  might  be  improved  by 
some  change  in  the  forms. 

We  may  readily  suppose  that  the  first  Kings  of  the 
Norman  line,  whose  business  was  war,  were  not  a  little 
annoyed  by  the  necessity  of  attending  to  the  controversies 
of  individuals,  and  that  it  would  be  their  wish  to  simplify 
these  as  much  as  possible,  and  to  shift  off  to  the  shoulders 
of  others  as  much  of  the  task  as  might  be  practicable. 
The  King  himself  was  no  clerk,  and  necessarily  employed 
the  pen  of  another.  We  may  imagine  his  stern,  impatient 
questions  — '  What  is  your  name  ?  Of  whom  do  you 
complain,  and  of  what?'  We  can  imagine  the  earnest 
desire  of  the  complainant  to  state  his  case  in  the  fewest 
and  plainest  words ;  and  the  frown  which  would  check  any 
disposition  to  ramble  or  declaim  ;  and  the  busy  clerk  wait- 
1* 


6  THE    PRINCIPLES    OF    PLEADING. 

ing  only  a  nod  from  his  master,  to  write  down  an  exact 
account  of  the  statement  given.     It  might  read  thus  : 

'  John  Doe  complains  of  Richard  lloe,  and  says  that  the 
said  Richard  owes  him  ten  pounds  and  detains  the  same 
unjustly;  for  that  the  said  Richard  on  the  first  day  of 
January  1159,  by  his  certain  writing,  sealed  with  his  seal 
and  here  shown  to  the  Court,  acknowledged  himself  to  be 
indebted  to  the  said  John  in  the  said  sum  of  ten  pounds, 
and  the  said  John  says  that  he  has  often  since  demanded 
payment  of  the  same,  and  that  the  said  Richard  has 
hitherto  refused  and  yet  refuses  to  pay  the  same  ;  and  of 
this  he  brings  his  suit.' 

Let  us  suppose  Richard  Roe  to  be  present  and  ques- 
tioned, as  to  the  defence  he  may  have  to  make.  He 
answers,  and  the  Clerk  writes,  thus : 

'  And  the  said  Richard  Roe  comes,  and  says  that  the 
said  John  Doe  ought  not  to  have  and  maintain  his  said 
action,  because  he  says  that,  since  the  making  of  the  said 
writing  obligatory,  to  wit  on  the  first  day  of  May  1159, 
the  said  John,  by  his  certain  writing,  sealed  with  his  seal 
and  to  the  Court  here  shown,  released  to  the  said  Richard 
the  said  writing  obligatory.' 

John  Doe  being  questioned  answers,  and  the  Clerk 
writes,  thus : 

'And  the  said  John  Doe  says  that  he  ought  not  to  be 
barred  of  his  action,  by  reason  of  any  thing  by  the  said 
Richard  above  alleged,  because  he  says  that  the  said  deed 
of  release  was  by  him  delivered,  not  to  the  said  Richard, 
but  t<»  :i  certain  John  Den,  and  that  there  was  at  the  time 
on  the  same  paper  a  condition  under  written,  to  the  effect 
following,  to  wit,  that  whereas  he  the  said  John  Doe  was 
indebted  to  a  certain  -lane  Styles  in  the  sum  often  pounds 
as  witnessed  by  a  certain  writing  obligatory  of  the  said 
John  to  the  -aid  .lane,  that  if  tin;  said  Richard  would  at 
any  time  during  the  year  1159,  procure  from  the  said  Jane 


TIIE    PRINCIPLES    OF    PLEADING.  7 

a  deed  of  release  duly  executed,  whereby  tlie  said  John 
Doe  should  forever  be  released  and  acquitted  of  his  said 
debt  to  the  said  Jane,  and  deliver  the  said  release  to  the 
said  John  Den,  then  and  in  that  case,  and  not  otherwise, 
the  said  John  Den  should  deliver  to  the  said  Richard  the 
writing  aforesaid  by  the  said  John  Doe  so  delivered  to  the 
said  John  Den.' 

Again  questioned,  Roe  answers,  and  the  Clerk  writes. 

'  And  the  said  Richard  Roe  says  that  after  the  delivery 
of  the  said  writing  by  him  above  mentioned,  to  the  said 
John  Den,  and  within  and  during  the  year  1159,  to  wit 
on  the  first  day  of  July  1159,  he  the  said  Richard  did 
procure  from  the  said  Jane  a  deed  of  release,  duly  execu- 
ted, whereby  the  said  John  Doe  was  forever  released  and 
acquitted  of  his  said  debt  by  him  in  pleading  above  men- 
tioned to  the  said  Jane,  and  that  thereupon  the  said  John 
Den  delivered  to  the  said  Richard  the  writing  aforesaid 
by  the  said  John  Doe  before  delivered  to  him.' 

The  King  again  turns  to  Doe,  whose  answer  is  recorded 
thus-» 

'  And  the  said  John  Doe  says,  that  after  the  making  of 
the  writing  by  him  as  above  mentioned  delivered  to  the 
said  John  Den,  the  said  Jane  Styles  who  was  at  that  time 
sole  and  unmarried,  intermarried  with  a  certain  John  Styles, 
to  wit  on  the  first  day  of  June  1159,  and  that  the  said  John 
Styles  at  the  time  of  the  making  of  the  said  supposed  deed 
of  release  by  the  said  Jane  was  in  full  life.' 

Roe  being  again  questioned  answers  thus. 

'  And  the  said  Richard  Roe  says  that  the  matters  and 
things  above  set  forth  by  the  said  John  Doe  in  his  plea 
last  pleaded  are  not  sufficient  in  law  to  maintain  the  action 
of  the  said  John ;  and  thereof  he  prays  the  judgment  of 
the  Court.' 

'  And  the  said  John  Doe '  (it  being  again  his  turn  to 
speak)  '  does  the  like.' 


8  THE    PRINCIPLES    OF    PLEADING. 

Now  it  will  be  seen,  that  all  the  answers  of  the  parties, 
before  the  last  belong  to  the  second  class  above  mentioned  ; 
viz;  on  the  part  of  the  plaintiff  'an  admission  of  the  fact 
alleged  coupled  with  a  statement  of  some  new  fact,  which 
shows  the  fact  so  admitted  to  be  no  justification  of  the  im- 
puted wrong ; '  and,  on  the  part  of  the  defendant,  '  an 
admission  of  the  fact  alleged,  coupled  with  a  statement  of 
some  new  fact  which  excuses  or  justifies  the  fact  so  ad- 
mitted.' 

The  last  answer  belongs  to  the  third  class ;  viz.  '  a 
naked  admission  to  be  backed  by  reasons  to  show  that, 
although  the  fact  be  true,  the  complainant  has  no  just  ground 
of  complaint.'     Let  us  see  what  these  reasons  may  be. 

They  might  be  expressed  in  a  few  words.  '  He  had 
literally  fulfilled  the  condition,  having  done  all  that  could 
be  done  or  that  he  was  bound  to  do.' 

But  he  is  told  by  the  court,  what  before  he  did  not 
know,  that  the  deed  of  a  feme  covert  is  absolutely  void, 
that  the  instrument  procured  by  him  from  Jane  Styles  was 
therefore  no  deed,  and  had  no  effect  to  release  her  demand 
against  John  Doe.  Judgment  is  accordingly  given  for  the 
plaintiff,  and  the  defendant  goes  away  satisfied  with  every 
thing  but  the  law  which  makes  the  deed  of  a  married 
woman  absolutely  void.  lie  may  think  that  principle 
unwise  or  unjust,  but  if  he  can  but  reconcile  himself  to 
that,  he  cannot  fail  to  be  perfectly  content  with  the  judg- 
ment as  its  inevitable  consequence. 

It  will  be  seen  that  the  record  of  the  above  case,  duly 
preserved,  fulfills  the  three  purposes  of  which  I  have 
spoken. 

1.  It  establishes  the  right  of  the  plaintiff,  and  serves  as 
tin-  ba>is  of  compulsory  proceedings  to  enforce  the  perform- 
ance of  the  defendant's  contract. 

2.  It  ascertains  and  settles  all  flit!  rights  arising  out  of 
the  various  transactions  involved  in  the  case. 


THE    PRINCIPLES    OF    PLEADING.  9 

3.  It  establishes,  for  the  information  of  all  whom  it  may- 
concern,  the  legal  propositions,  that  the  act  of  a  married 
woman  releasing  a  debt  due  to  her  when  sole  is  wholly 
inoperative. 

It  may  surprise  the  unlearned  reader  to  be  told  that 
these  short  memoranda  of  the  reciprocal  allegations  of  the 
parties  in  this  case  are  neither  more  nor  less  than  a  declar- 
ation, plea,  replication,  rejoinder,  and  surrejoinder,  followed 
by  a  demurrer  to  the  last,  and  judgment  thereon.  lie  has 
heard  of  these  things,  and  doubtless  thought  the  things 
themselves  as  formidable  as  their  names.  But  if  any  man 
of  ordinary  intelligence  will  recollect  how  often  he  has  gone 
through  a  similar  process  in  discussing  questions  of  right 
with  his  neighbors,  it  may  be  hoped,  that  he  will  find  him- 
self somewhat  in  the  condition  of  the  good  lady,  who  was 
amazed  at  discovering,  that  she  had  been  talking  prose  all 
her  life,  without  knowing  it. 

Now  I  beg  the  reader  to  observe  that  here,  by  the  help 
of  a  single  legal  proposition,  a  case  involving  a  variety  of 
facts,  and  some  law,  has  been  settled  by  the  King,  Stante 
pede  in  uno,  to  the  satisfaction  of  both  parties,  without 
witnesses,  and  without  a  Jury.  By  requiring  of  the  plain- 
titf  a  precise  statement  of  facts  in  the  beginning,  the  defend- 
ant was  made  to  feel  the  necessity  of  a  counter-statement 
equally  precise,  and  this  process  was  kept  up,  until  the 
whole  history  of  the  transaction  was  developed  with 
unerring  certainty,  and  nothing  remained  but  to  decide  a 
plain  question  of  law.  Suppose  a  different  course  had 
been  pursued.  Suppose  the  Plaintiff,  in  answer  to  the 
first  question,  to  have  been  permitted  simply  to  reply 
'  Richard  Roe  owes  me  £10,  and  refuses  to  pay  me.'  The 
answer  of  the  other  would  have  been  simply  'I  do  not.' 
The  parties  must  then  have  been  dismissed  to  collect  their 
testimony,  a  jury  must  have  been  impannelled,  a  multitude 
of  witnesses  must  have  been  examined  to  prove  what  the 


10  THE    PRINCIPLES     OF    PLEADING. 

parties  respectively  would  have  admitted  if  properly  ques- 
tioned, and,  in  the  end,  it  would  have  appeared  that  the 
only  thing  for  the  jury  to  decide  was  a  question  of  law. 
On  this  the  court  would  instruct  them,  and,  in  that  day, 
when  juries  respected  instructions,  the  immediate  result 
might  have  been  the  same.  But  the  record  would  only 
have  shown  that  Richard  Roe  owed  John  Doe  ten  pounds, 
without  showing  on  what  account,  and  leaving  much  mat- 
ter for  future  litigation.  In  our  own  time,  it  would  fre- 
quently happen,  that,  at  least  one  juror  would  take  on 
himself  to  think  that  the  Judge  had  mistaken  the  law, 
another  perhaps  might  think  that  if  the  law  was  not  dif- 
ferent from  what  had  been  laid  clown,  it  ought  to  be  ;  and  so 
we  should  have  a  hung  jury ;  the  parties  and  witnesses 
would  be  kept  in  attendance  during  the  whole  term,  and 
then  dismissed,  to  come  back  again  at  the  end  of  six  months 
to  renew  the  same  abortive  effort.  We  may  suppose  that 
judgment  must  at  last  be  given  for  the  plaintiff,  but  it  would 
often  happen,  when  the  defendant  was  a  poor  man,  that 
the  costs,  which  must  always  be  first  paid,  would  swallow 
up  his  whole  estate,  and  leave  nothing  to  satisfy  the  debt. 
I  appeal  to  every  lawyer  of  any  experience  to  say  if  there 
is  any  exaggeration  in  this  view  of  the  matter.*     Pope's 

*  I  once  tried  a  case  in  which  the  counsel  arrived  at  an  issue  per  sal- 
tum.  The  pleadings  disclosed  nothing1.  A  multitude  of  witnesses  were 
examined.  The  argument  occupied  a  whole  day,  and  the  Jury  were 
hung  to  the  end  of  the  term.  Before  adjourning  the  court,  I  directed 
that  the  pleadings  should  be  reformed.  This  was  done,  and  they  were 
drawn  out,  perhaps  to  a  rebutter.  At  the  next  term  most  of  the  testi- 
mony which  had  been  taken  before  was  dispensed  with,  having  been  made 
superfluous  by  the  pleadings.  The  examination  of  witnesses  did  not 
occupy  an  hour,  the  ease  was  submitted  without  instruction  and  without 
argument,  and  in  live  minutes  the  .hny  returned  a  verdict  incontestably 
right,  and  perfectly  satisfactory  to  all  parties.  The  carelessness  of  the 
Attorneys  li.nl  cost  their  clients  at  least  $100,  (more  than  the  amount  in 
controversy)  public-  justice  was  delayed,  and  the  costs  of  every  suit 
standing  ready  \'<>r  trial,  and  awaiting  the  disposition  oi'  this  case,  were 
much  increased. 


THE    PRINCIPLES    OF    PLEADING.  11 

apologue  of  the  Oyster  is  too  often,  as  the  lawyers  say,  a 
case  ui  point. 

In  order  that  I  might  exhihit  the  proceedings  in  this  case 
in  naked  simplicity,  I  have  supposed  both  parties  to  be 
present  from  the  beginning.  But  this  did  not  always 
happen,  and  hence  it  was  necessary  to  provide  means 
for  bringing  the  defendant  before  the  King.  This  was 
done  by  an  instrument  under  the  seal  of  the  King  himself, 
called  a  Writ,  which  was  addressed  to  the  Sheriff  of  the 
proper  county,  and  required  him  to  command  the  defendant 
to  satisfy  the  plaintiffs  demand,  which  was  set  forth  in  the 
body  of  the  writ,  or  to  appear  before  the  King  on  a  certain 
day,  to  show  why  he  had  not  done  so.  Now  so  long  as 
the  King  himself  sat  as  Judge  in  the  case,  this  writ  could 
make  no  difference  in  the  proceedings.  Having  the  par- 
ties before  him,  he  might  try  that  or  any  other  controversy 
that  might  have  arisen  between  them.  It  followed  that, 
if  the  plaintiff  had  mistaken  his  case  in  any  particular, 
he  might  renounce  the  benefit  of  the  writ,  and  go  on  to 
make  his  complaint  according  to  the  very  truth  of  his  case, 
as  then  understood,  without  any  writ  at  all.  But  the  mat- 
ter was  different  when  the  King  thought  fit  to  delegate  his 
authority  to  another.  Such  delegation  always  had  refer- 
ence to  the  particular  ease  set  forth  in  the  writ,  and  the 
person  selected  to  represent  the  King  found  himself  author- 
ized to  try  the  case  as  set  forth  in  that  writ,  and  not  any 
different  case.  Hence  the  necessity  of  an  exact  conformity 
between  the  complaint  described  in  the  writ  and  that  set 
forth  in  the  declaration.  The  latter  might  show  a  cause  of 
action  clearly  entitling  the  plaintiff  to  redress,  but  the 
individual  acting  in  place  of  the  King  could  give  none, 
because  on  looking  to  the  writ  he  would  see  that  his  author- 
ity did  not  extend  to  it.  With  this  exception  there  is  no 
reason  to  suppose  that  the  proceeding  before  the  represent- 
ative of  the  Kin"  at  all  differed  from  that  before  the  Kin2 


12  THE    PRINCIPLES    OF    PLEADING. 

himself.  I  advert  to  it  here,  because  I  am  satisfied  that 
the  conformity  afterwards  required  between  the  writ  and 
declaration  took  its  rise  in  this  practice  of  occasional  dele- 
gation of  authority  to  try  particular  causes. 

It  was  soon  found  that  it  must  be  impossible  for  the 
King  to  transact,  in  person,  all  the  judicial  business  brought 
before  him,  and  hence  the  delegation  of  his  authority  to 
others  became  habitual.  In  making  this  he  seems  to  have 
divided  his  duties  into  two  distinct  parts,  allotting  them  to 
two  different  agents. 

As  has  been  remarked,  the  parties  would  rarely  appear 
before  him  together  in  the  first  instance,  and  to  compel  the 
appearance  of  the  Defendant  the  writ  was  used.  Now  the 
writ,  it  will  be  remembered,  commanded  the  defendant  to 
satisfy  the  demand,  or  show  cause  to  the  contrary.  Of 
course  then  the  case  stated  by  the  plaintiff,  should  always 
be  one,  which,  if  true,  would  entitle  him  to  what  he 
demanded,  unless  sufficient  excuse  were  offered.  Hence 
the  issuing  of  this  writ  was  itself  an  act  requiring  some 
knowledge  of  the  law,  for  if,  by  the  plaintiff's  own  show- 
ing, he  had  no  claim,  no  writ  ought  to  issue.  It  followed, 
that  he  who  was  entrusted  to  issue  the  writ  should  be 
competent  to  decide  whether  the  case  stated  by  the 
plaintiff  would  maintain  an  action. 

The  task  of  deciding  this  appears  to  have  been 
committed  to  the  Chancellor,  and  we  have  a  proclamation 
of  Edward  III,  commanding  all  who  wished  to  apply  to 
him  about  Common  Law  business,  to  go  to  that  officer. 
To  him  therefore  it  belonged  to  consider  whether  the 
matters  complained  of  by  the  plaintiff  were  such,  as,  if 
proved,  would  entitle  him  to  redress.  It  followed  that 
every  writ  issued  by  him  embodies  a  decision  that  the  facts 
set  forth  therein  constitute  a  ground  of  action,  and  as  all 
these  writs  were  recorded  in  the  chancery,  every  writ, 
which  can  be  found  in  that  oficina  breviuni,  affords  proof 
of  what  was  held  to  be  law  at  the  time. 


THE    PRINCIPLES    OF    PLEADING.  13 

It  would  appear  that  this  work  soon  afforded  so  much 
employment  to  the  Chancellor  as  to  leave  him  no  leisure 
to  try  the  numerous  suits  thus  brought.  Some  indeed  he 
did  try,  but  these  were  generally  such  as  did  not  admit  of 
adequate  relief  according  to  the  course  of  the  Common 
Law.  But  in  all  cases  where  the  Common  Law  afforded 
full  redress,  the  Sheriff  was  directed  to  summon  the 
defendant  to  appear  before  other  persons,  to  whom  the 
writ  was  returned,  as  an  authority  to  them  to  try  the 
cause. 

It  was  of  course  desirable  that  these  persons  should  be 
learned  in  the  Law  of  the  land ;  and,  as  practice  makes 
perfect,  those  who  acquitted  themselves  satisfactorily  in 
the  discharge  of  this  trust  were  likely  to  be  called  on  again. 
This  soon  led  to  the  necessity  of  employing  the  same 
individuals  habitually,  and  consequently  to  considerable 
circumspection  in  selecting  them.  Among  the  number 
whom  it  was  thought  advisable  to  call  on,  were  four 
officers  who  had  been  already  constituted  as  conservators 
of  the  peace  and  criminal  Judges.  But  besides  these,  four 
others  were  selected,  before  whom  alone  all  writs  for  the 
recovery  of  real  property  were  made  returnable.  These 
eight  constituted  two  distinct  Courts,  the  first  called  the 
King's  Bench,  the  second  the  Common  Pleas.  In  the  first 
of  these  the  King  himself  once  presided,  though  his  pres- 
ence there  was  by  no  means  necessary.  Still  he  was 
considered  in  law  as  being  actually  or  potentially  present, 
and  hence,  at  this  day,  in  certain  legal  instruments,  suits 
tried  in  that  Court  are  described  as  '  Pleas  before  the  King 
himself.'  The  earliest  records  which  come  down  to  us,  do 
not  however  afford  evidence  of  his  actual  presence,  but  the 
cases  seem  to  have  been  all  tried  by  these  officers  who  de- 
rived their  authority  directly  from  him. 

To  one  or  the  other  of  these  courts  all  writs  were  made 
returnable,  the  Land  causes  being  all  sent  to  the  Common 
2 


14  THE    PRINCIPLES    OP    PLEADING. 

pleas,  and  all  others  indifferently,  at  the  pleasure  of  the 
Chancellor  probably  at  first,  and  at  last  at  the  choice  of 
the  plaintiff,  to  either  the  one  or  the  other.  * 

Inveterate  usage  has  given  us  a  habit  of  regarding 
these  persons  as  Officers  of  the  law,  and  of  supposing  that 
when  they  sat  in  judgment  on  civil  actions,  they  were 
exercising  a  function  belonging  to  them  ex  officio.  But 
this  is  a  mistake.  They  were  not  officers  of  the  Law,  but 
of  the  King,  deputed  by  him  to  exercise  a  function  prop- 
erly belonging  to  him,  and  actually  performed  by  him  until 
the  multitude  and  importance  of  his  avocations  showed  him 
the  necessity  of  performing  this  duty  by  Deputy.  As 
criminal  Judges  and  Conservators  of  the  peace  the  justices 
of  the  King's  bench  probably  acted  under  a  general  com- 
mission giving  them  authority  to  act  in  all  emergencies  on 
their  own  judgment.  But  as  Judges  of  controversies 
between  man  and  man,  they  continued  to  the  last,  to  derive 
their  authority  to  try  each  particular  case,  from  the  writ 
returned  before  them.  Thence  they  would  feel  it  to  be 
their  duty  to  endeavor  to  decide  as  they  might  believe  the 
King  himself  would  have  decided.  This  would  lead  them 
to  consult  the  records  in  order  to  ascertain  what  had  been 
his  decisions  in  like  cases,  and  hence,  I  conceive  the  max- 
im stare  decis.es,  and  the  remarkable  uniformity  which  runs 
through  the  whole  of  the  Judicial  proceedings  of  England. 
There  is  nothing  perhaps  in  the  history  of  human  institu- 
tions so  stable  as  this  branch  of  the  Law  of*  England.  We 
are  therefore  warranted  in  supposing  that  when  the  King 
firs!  associated  these  learned  men  with  himself,  he  contin- 
ued fco  conducl  the  trial  of  causes  as  lie  had  done  when  he 
sat    alone ;  that    his   occasional    absence   would  make  no 

*  Iliave  said  nothing  here  of  the  Exchequer,  because  the  forms  of 
proceeding  in  thai  court  have  not  been  adopted  by  curs,  and  no  expla- 
nation of  them  is  necessary  to  a  right  understanding  of  the  forms  in  use 

among  us. 


THE    PRINCIPLES    OF    PLEADING.  15 

change  in  the  course  of  proceeding ;  and  that,  when,  at 
last,  he  ceased  to  attend  the  Court,  all  things  went  on  just 
as  before.  Hence  it  may  be  assumed  that  the  sketch  of 
the  pleadings  given  above  is  as  applicable  to  the  earliest 
proceedings  before  the  King's  bench  as  to  those  which 
took  place  before  the  King  alone.  In  that  sketch  I  have 
taken  no  notice  of  the  writ,  and  hence  it  may  be  taken  as 
an  example  of  the  conduct  of  a  cause,  from  the  declaration, 
to  judgment  on  demurrer  to  a  sur-rejoinder,  not  at  all  mod- 
ified by  the  means  used  to  bring  in  the  parties,  to  compel 
their  attention  to  the  suit  in  its  progress,  or  by  the  trial  by 
Jury,  or  by  the  peculiar  structure  of  the  English  Courts. 
It  remains  to  speak  of  the  modifications  effected  by  each 
of  these  causes. 


The  writ  being  the  only  commission  which  gave  the 
Court  authority  to  act,  it  was  deemed  necessary  to  connect 
the  proceedings  therewith  by  a  brief  recital  of  the  sub- 
stance of  that  instrument.  To  the  declaration  therefore  as 
given  above  would  have  been  prefixed  these  words : 
'  Richard  Roe  was  summoned  to  answer  John  Doe  of  a 
plea  that  he  render  to  the  said  John  Doe,  the  sum  of  ten 
pounds  which  he  owes  to  and  unjustly  detains  from  him.' 

As  our  judges  derive  their  authority  not  from  the  writ, 
but  from  their  commissions  and  the  law  of  the  land,  this 
recital  is  superfluous  with  us.  In  place  of  it  we  have 
indeed  something  else  ridiculously  superflous,  and  even 
false,  of  the  origin  of  which  I  shall  speak  hereafter.  At 
present  I  shall  merely  say  that  in  Virginia  there  is  no  rea- 
son why  the  declaration  should  contain  any  thing  of  the 
sort. 

But,  inasmuch  as  the  whole  record  was  rarely  made  up 
at  once,  and  time  was  usually  given  the  parties  to  consider 
of  the  answers  to  be  made  to  the  allegations  of  the  adver- 


16  THE    PRINCIPLES    OF    PLEADING. 

sary,  it  was  necessary  to  devise  means  to  compel  this 
re-appearance  from  time  to  time  and  their  regular  attention 
to  the  prosecution  and  defence  of  their  suits. 

The  means  adopted  were  exceedingly  simple  and  effica- 
cious. The  neglect  of  the  defendant  was  punished  by 
interpreting  his  silence  into  confession,  and  giving  judg- 
ment accordingly :  that  of  the  Plaintiff  by  dismissing  his 
suit  with  costs. 

Now  it  is  obvious  that  the  progressive  increase  of  litiga- 
tion, after  forcing  the  King  to  delegate  his  judicial  function, 
and  to  distribute  it  among  different  functionaries,  would 
soon  render  the  mass  of  business  onerous  to  these  function- 
aries themselves.  They  too  would  make  use  of  a  clerk, 
and  it  would  be  their  study  to  devolve  on  him,  as  mere 
ministerial  duties,  every  thing  to  which  no  knowledge  of 
the  law  was  necessary.  lie  would  of  course  be  held  to 
severe  responsibility  for  any  abuse  of  the  trust  thus  reposed 
in  him,  and  it  was  easy  to  declare  all  acts  done  by  him,,  as 
by  authority  of  the  court,  when  the  conditions  on  which 
that  authority  was  given  were  wanting,  to  be  absolutely 
void. 

Thus,  if  we  suppose  the  defendant  to  appear  and  confess 
judgment,  there  could  be  no  objection  to  permitting  the 
Clerk  to  take  down,  from  his  lips,  the  judgment  so  confess- 
ed, and  enter  it  as  the  judgment  of  the  Court.  If  the 
Judge  were  present  he  would  tell  the  Clerk  to  enter  judg- 
ment, and  if  he  should  ask  what  judgment,  the  answer 
would  be,  '  take  it  from  the  defendant's  lips.'  In  pursuing 
this  course  it  is  obvious  that  it  is  the  integrity  of  the  Clerk, 
not  his  judicial  skill,  which  is  trusted  ;  and  that  the  abuse 
of  this  trust  could  produce  only  slight  inconvenience  to 
others,  but  woidd  bring  down  ruin  on  himself. 

In  the  case  of  an  actual  confession  then,  there  could  be 
no  oeed  that  the  cause  should  ever  come  before  the  Court. 
The   Judgment   might    be  safely  entered   in  the   Clerk's 


THE    PRINCIPLES    OF    PLEADING.  17 

office,  and,  unless  impeached  for  irregularity,  would  stand 
as  that  of  the  Court. 

Might  not  something  analogous  be  contrived  for  cases 
where  the  silence  of  the  party  was  taken  as  confession  ? 
Obviously  not,  unless  there  was  something  in  the  record  to 
show  not  merely  the  fact  confessed  but  the  judgment  as- 
sented to.  The  confession  of  the  fact  alone  would  not  do, 
because  the  Clerk  being  not  a  judicial,  but  a  mere  ministerial 
officer  was  incompetent  to  decide  what  judgment  the  fact 
so  admitted  would  warrant.  But  what  if  the  plaintiff 
were  required  to  couple  with  the  statement  of  the  fact  a 
prayer  of  the  Judgment  claimed  in  virtue  of  it  ?  Might  it 
not  be  allowable  to  understand  the  silence  of  the  defendant 
as  not  only  an  admission  of  the  fact,  but  an  assent  also  to 
the  Judgment  so  prayed  ?  The  answer  was  obviously  in 
the  affirmative,  and  nothing  remained  but  to  establish  fixed 
rules  by  which  the  Clerk  was  to  know  when  to  interpret 
the  silence  of  the  defendant  as  confession.  The  plaintiff 
being  required  to  couple  his  statement  of  fact  with  a  prayer 
of  Judgment,  the  task  of  transferring  that  Judgment  to  the 
roll  as  the  judgment  of  the  Court  was  purely  ministerial. 

Let  us  see  what  changes  this  would  make  in  the  plead- 
ings. 

If  we  look  back  to  the  declaration  given  above,  and 
compare  it  with  the  form  now  in  use,  we  shall  find  that  it 
wants,  in  the  beginning,  these  words  :  'John  Doe  complains 
of  Richard  Roe  of  a  plea  that  he  render  to  the  said  John 
Doe  the  sum  of  ten  pounds  which  he  owes  to  and  unjustly 
detains  from  him;  for  that'  &c.  &c.  This  the  plaintiff's 
plea- — placeat  Curice  —  or  prayer  to  the  Court  is  the 
judgment  prayed  for. 

In  like  manner  it  will  appear  that  the  foregoing  Repli* 

cation  wants  at  the  beginning  these  words :  <  And  the  said 

John  Doe  says  that  by  reason  of  any  thing  in  the  said  plea 

alleged  he  ought  not  to  be  barred  from  having  and  main* 

2* 


18  THE    TRIXCIPLES     OF    PLEADING. 

taining  his  action  aforesaid,  because  he  says  &c.'  It  also 
wants  these  words  at  the  end :  '  Wherefore  he  prays 
judgment  and  his  debt  aforesaid  and  his  damages  by 
reason  of  the  detention  of  the  debt  aforesaid  to  be  adjudged 
to  him.'  The  judgment  here  mentioned  is  of  course  the 
judgment  already  prayed  for;  and  the  reiteration  of  the 
prayer  here  would  be  superfluous,  if  there  were  not  certain 
cases  in  which  the  replication  concludes  with  a  different 
prayer. 

In  comparing  the  surrejoinder  above  with  the  form  now 
in  use,  it  will  be  seen  that  that  too  wants  the  same  words 
at  the  beginning  and  conclusion,  which  have  been  added 
for  the  same  reason.  The  same  may  be  said  of  the  surre- 
butter. 

So  it  will  be  seen  that  the  plea  and  rejoinder  of  the 
defendant  want  at  the  beginning  these  words  :  '  The  said 
Richard  Roe  says  that  the  said  John  Doe  ought  not  to 
have  or  maintain  his  action  against  him,  because  he  says 
that '  &c.  &c.  and  at  the  end  these  :  '  Wherefore  he  prays 
judgment  if  the  said  John  Doe  ought  to  have  or  maintain 
his  aforesaid  action  against  him.' 

Now,  as  the  reader  may  remember,  the  neglect  of  the 
plaintiff*  to  reply  or  surrejoin  was  not  followed  by  the 
judgment  here  prayed,  but  by  a  mere  dismission  of  his 
suit  in  a  form  appropriate  to  that  purpose.  Hence  there 
is  not  the  same  necessity  for  the  prayer  of  judgment  by 
the  defendant  as  by  the  plaintiff1,  and  this  may  have  been 
required  1.  for  the  sake  of  symmetry  in  the  system,  or  2. 
because  there  are  other  cases  to  which  a  different  prayer 
would  be  appropriate,  or  3.  to  keep  ever  present  to  the 
pleader's  mind  the  due  relation  between  the  fact  pleaded 
and  the  judgment  to  be  rendered  in  virtue  of  it. 

In  this  relation  we  find  one  of  the  most  striking  and 
beautiful  features  in  the  system  of  pleading.  Every 
judgment  is  the  conclusion  of  a  syllogism  of  which  the 


THE    PRINCIPLES    OF    PLEADING.  19 

law  is  the  major  (unexpressed)  and  the  fact  the  minor 
premise.  Such  being  understood  to  be  the  law  —  and  such 
being  the  fact  '  ideo  consider •atutn  est,'  and  then  follows 
the  judgment  as  the  conclusion.  The  pleading  then,  which 
demands  a  certain  conclusion,  must  state  a  fact  which  will 
warrant  it,  or  such  pleading  must  be  bad.  The  party  must 
have  the  judgment  prayed  or  none,  and  if  the  fact  he 
states  will  not  warrant  the  judgment  prayed,  then,  as  he 
can  have  no  other,  no  judgment  at  all  can  be  given  for 
him,  and,  as  the  case  must  terminate,  it  must  be  by  judg- 
ment against  him.  We  shall  hereafter  see  what  use  is 
made  of  this  by  skillful  pleaders.  At  present  I  only 
propose  to  show  its  great  convenience  in  lightening  the 
labors  and  expediting  the  business  of  the  Court. 

Let  it  be  borne  in  mind  that  the  power  of  the  Clerk  to 
enter  up  judgments  as  by  way  of  tacit  confession  was 
given  only  on  certain  precise  conditions  and  under 
circumstances  which  must  be  under  his  own  personal 
cognizance.  These  concurring  he  had  the  power  ;  other- 
wise not.  When  they  did  not  concur  the  entry  so  made 
was  unauthorized,  and  of  no  force  as  a  judgment,  and  was 
sure  to  be  disavowed  and  set  aside  by  the  Court,  whenever 
brought  to  their  notice.  It  follows  that  the  blunder  of  the 
Clerk  could  do  no  harm  except  to  the  party  in  whose  favour 
the  judgment  was  entered  ;  and  even  he  was  protected  by 
a  rule  that  none  such  should  be  entered  but  at  the  instance 
of  his  counsel,  whose  name  was  always  to  be  signed  to  it. 
But  to  the  other  party  it  could  do  no  harm  whatever.  It 
could  never  be  enforced  against  him  but  by  an  execution 
which  would  notify  him  of  it,  and  he  would  forthwith 
move  the  Court  to  set  it  aside.  This  being  done,  the 
plaintiff  would  be  out  of  court  and  must  begin  de  novo. 

So  much  for  any  mischief  which  might  be  supposed  to 
result  from  this  practice.  On  the  other  hand,  it  prevented 
the  Court  from  being  at  all  troubled  with  any  one  of  that 


20  THE    PRINCIPLES    OF    PLEADING. 

vast  multitude  of  suits  which  admit  of  no  controversy, 
and  in  which  the  plaintiff  reluctantly  goes  to  law  to 
compel  the  compliance  of  the  defendant  with  an  incon- 
trovertible demand.  Nor  was  this  all.  The  pleadings 
being  conducted  altogether  in  the  office,  the  Court  never 
heard  of  the  case  until  it  was  brought  to  an  issue  of  law 
or  fact.  When  this  was  done,  it  was  placed  on  the  Court 
docket,  and  the  Court  proceeded  to  decide  on  the  demurrer, 
if  it  came  up  on  an  issue  of  law,  or  to  empannel  a  jury  to 
try  the  issue  of  fact,  if  such  were  the  issue  arrived  at  by 
the  pleadings.  Now  in  the  conduct  of  these,  the  parties 
themselves  would  xery  often  find  out  what  must  be  the 
event  of  the  suit,  and  so  settle  it  out  of  court  by  confession, 
dismission  or  compromise.  Every  lawyer,  who  has  had 
much  experience  in  pleading,  knows  that  this  very  fre- 
quently happens.  As  the  facts  of  the  case  are  developed 
in  the  pleadings,  and  the  pleader  finds  on  consulting  with 
his  client  that  he  has  to  answer  a  plea  which  is  good  in 
law,  and  alleges  a  fact  which  he  can  neither  deny  nor 
excuse,  he  sees  that  he  can  do  no  more.  Thus  in  the  case 
I  have  detailed,  Jane  Styles  having  married  a  man  of  her 
own  name,  the  defendant  may  be  supposed  not  to  be  aware 
of  her  marriage,  or  he  may  not  have  known  the  importance 
of  it.  lie  said  nothing  of  it  to  his  attorney,  but  only 
laid  before  him  a  paper  in  due  form  of  a  release,  signed 
with  her  name,  and  corresponding  in  all  respects  with  the 
terms  of  the  condition  annexed  to  the  release  of  the 
plaintiff.  In  view  of  this,  his  counsel  may  be  supposed  to 
have  advised  him  to  stand  the  suit,  assuring  him  that  the 
plaintiff  could  not  recover.  The  surrejoinder  however, 
stating  the  fact  of  the  marriage,  opens  the  lawyer's  eyes, 
he  inquires  how  the  fact  is,  and  having  learned  that  the 
woman  certainly  was  married,  either  confesses  judgment 
(stipulating  perhaps  for  some  little  time)  or  suffers  the 
case  to  go  by  default.     The  Court  never  hear  of  it. 


THE    PRINCIPLES    OF    PLEADING.  21 

Where  business  is  conducted  regularly  and  in  due  order 
by  men  really  skilled  in  the  profession,  such  results  are  by 
no  means  uncommon.  Each  party,  in  considering  on  his 
adversary's  pleading,  demurs  to  it  in  his  own  mind  and 
then  sits  in  judgment  on  the  demurrer.  If  he  decides  it 
against,  himself,  nothing  remains  but  to  inquire  of  the 
truth  of  his  adversary's  allegation,  and  if  he  finds  that  it 
can  neither  be  controverted  nor  excused,  he  advises  his 
client  to  surrender  the  contest,  and  make  terms  of  com- 
promise if  he  can. 

This  practice  of  entering  up  judgments  in  the  office 
gives  rise  to  the  distinction  between  irregularity  and  error. 
Irregularity  is  the  blunder  of  the  Clerk.  Error  is  the 
mistake  of  the  Court. 

A  pair  of  instances  will  illustrate  both. 

The  plaintiff  sets  forth  a  bond  for  ten  pounds,  and  prays 
judgment  accordingly  for  that  sum.  The  fact  will  war- 
rant that  judgment,  and,  if  the  fact  be  admitted  by  the 
silence  of  the  defendant,  the  judgment  will  be  properly 
entered.  But  the  Clerk  is  instructed,  that  the  silence  of 
the  defendant  is  only  to  be  understood  as  an  admission, 
when  he  has  been  duly  summoned,  and  then  has  remained 
silent  for  a  certain  time.  If  then  the  defendant  has  not 
been  duly  summoned,  — or  if  the  prescribed  time  has  not 
elapsed,  —  or  if,  within  the  time,  the  defendant  has  actually 
filed  a  plea,  which  has  been  overlooked  by  the  Clerk,  in 
either  of  these  cases  he  has  no  authority  from  the  Court 
to  enter  judgment,  and  any  judgment  so  entered,  will  not 
be  in  fact  the  judgment  of  the  Court.  Now  here  the  fault 
is  that  the  Clerk  has  made  an  improper  use  of  the  name  of 
the  Court,  and  abused  the  power  intrusted  to  him.  The 
most  proper  tribunal  for  correcting  this  was  the  Court, 
from  which  alone  the  Clerk  derived  his  authority,  and 
which  was  best  qualified  to  decide  whether  he  had  duly 
conformed  to  the  conditions  prescribed  for  its  exercise.  At 


22  THE    PRINCIPLES    OF    PLEADING. 

this  day  indeed,  in  Virginia,  the  Clerk  derives  his  powers 
from  the  law  of  the  land,  and  not  from  the  Court,  but  as 
his  act  was  neither  authorized  nor  ratified  by  the  Court, 
there  is  no  reason  why  it  should  not  be  revised  by  it. 
Moreover,  the  imputed  mistake  being  one  of  fact,  is  most 
easily  rectified  there  where  the  facts  occurred.  Hence 
motions  to  set  aside  judgments  for  irregularity  are  always 
made  in  the  same  Court  in  whose  name  such  judgments 
were  entered. 

Now  suppose  the  declaration  to  set  forth  a  bond  for  ten 
pounds,  and  to  demand  a  judgment  for  twenty.  This  is  a 
palpable  non  sequitur,  and  the  declaration  is  clearly  bad. 
But  the  Clerk  is  not  to  judge  of  that.  The  defendant  has 
been  duly  summoned.  The  time  allowed  him  to  answer 
has  elapsed,  and  he  has  not  ansivered.  All  the  conditions 
necessary  to  authorize  the  Clerk  to  enter  a  judgment  do 
actually  concur;  the  plaintiff  insists  on  the  judgment  and 
the  Clerk  enters  it.  Now  here  is  no  irregularity,  but  a 
gross  error.  How  shall  that  be  corrected  ?  Not  by  the 
same  Court,  for  the  judgment,  being  entered  in  pursuance 
of  its  authority,  is  the  judgment  of  the  Court  itself,  and  no 
court  is  depended  on  to  correct  its  own  errors.  The  case 
therefore  must  be  taken  to  some  superior  tribunal,  by 
which  the  judgment  is  reversed. 

Now  in  this  last  case,  the  judgment,  although  palpably 
erroneous,  is  yet  the  judgment  of  the  Court,  and,  until 
reversal,  has  all  the  force  and  effect  of  any  other  judgment. 
Moreover,  if  not  taken  to  a  superior  tribunal  for  revision 
within  a  limited  time,  it  becomes  forever  irreversible. 

lint  in  the  first  case,  the  thing  entered  as  a  Judgment 
was,  in  truth,  not  the  act  of  the  Court,  but  the  unauthorized 
act  of  the  Clerk,  and  so  no  Judgment  at  all  from  the  first. 
Now,  quod  ab  initio  non  valet,  tractu  temporis  non  con- 
valcscit.  Hence  no  time  can  give  it  validity.  It  remains 
forever  a  nullity,  and  may  be  pronounced  to  be  so,  and  set 


THE    PRINCIPLES    OP    PLEADING.  23 

aside  at  any  time,  though  property  acquired  under  it  may 
be  protected  by  the  laws  prescribing  limitations  to  actions 
to  recover  it. 

The  various  advantages  of  this  simple  contrivance  can 
hardly  be  duly  appreciated  but  by  one  "who  has  had  a  large 
experience  of  them.  But  every  one  who  is  at  all  ac- 
quainted with  the  subject  must  perceive,  that,  rightly 
understood  and  intelligently  applied,  it  must  be  attended 
with  great  convenience  to  all  concerned.  In  the  English 
Courts  it  would  seem  that  the  attorney  for  the  plaintiff,  on 
whom,  in  the  end,  all  the  evil  consequences  of  irregularity 
are  made  to  fall,  decides  for  himself  whether  his  case  is 
ready  for  judgment.  The  Clerk  enters  it  by  his  direction, 
and  the  attorney  assumes  the  responsibility  by  signing  his 
name  in  the  margin. 

This  looks  like  a  dangerous  power  in  the  hands  of  a 
party,  and  it  is  indeed  a  sharp  tool,  but  it  can  only  cut  the 
ringers  of  him  who  uses  it.  For  let  it  be  remembered  that 
the  judgment,  if  regularly  entered,  is  just  the  judgment 
the  Court  would  have  given  ;  and  if  irregularly,  is  an  abso- 
lute nullity,  to  be  set  aside  with  costs  which  are  charged 
to  him  who  entered  it.  The  plaintiff  too  is  put  out  of 
Court,  and,  having  to  begin  de  novo,  loses  all  the  ground 
he  had  gained.  It  follows  that  the  attorney  exercises  a 
degree  of  vigilance  and  circumspection  over  himself,  greater 
than  the  Court  or  the  adverse  party  could  conveniently  use. 
There  is  no  need  to  watch  him.  He  has  to  watch  himself, 
and  by  taking  care  to  err  on  the  safe  side,  spares  the  Court 
the  discussion  of  many  a  nice  point.  A  short  anecdote 
will  place  this  matter  in  a  striking  light. 

I  was  once  requested  by  a  member  of  the  bar  to  decide 
whether  the  Sheriff's  return  on  a  writ  was  such  as  to  enable 
him  to  proceed  to  take  a  judgment  for  want  of  a  plea.  I 
declined  doing  so.  At  this  he  manifested  much  surprise, 
and,  respectfully  enough,  insisted  on  a  decision  ;  but  when 


24  THE    PRINCIPLES    OF    PLEADING. 

reminded  that  the  other  party  was  not  yet  before  the  Court, 
and  that  the  very  question  was  whether  he  had  received 
such  notice  as  made  it  his  duty  to  be  there,  he  readily  ad- 
mitted that  it  would  be  wrong  to  decide  any  thing  to  his 
prejudice.  Still  he  seemed  not  to  understand  his  situation, 
whereupon  I  told  him  that  the  Clerk  would  enter  judg- 
ment if  he  thought  proper  to  direct  it.  This  increased  his 
surprise,  and  changed  his  dissatisfaction  to  pleasure,  until  I 
explained  to  him,  that,  if  indeed  the  defendant  had  not  been 
duly  summoned,  the  judgment  would  be  a  nullity,  and  that 
when  the  defendant  should  appear  and  move  to  set  it  aside, 
I  should  then  be  at  liberty  to  decide  the  question.  Pie  im- 
mediately saw  the  necessity  of  considering  well  what  he 
was  about,  and,  unwilling  to  hazard  his  case  on  a  doubtful 
point,  ordered  a  new  writ,  and  afterwards  got  his  judgment 
without  any  controversy.  I  remember  that  the  question 
was  a  nice  one,  and  the  attorney,  by  being  careful  to  err, 
if  he  should  err,  on  the  safe  side,  probably  saved  himself 
and  his  client  from  loss,  and  spared  the  Court  a  discussion 
of  some  hours,  which  would  have  taken  place  at  the  next 
term,  if  he  had  gone  on  rashly  to  enter  judgment. 

From  what  has  been  said,  it  will  be  seen  that  I  look  on 
the  prayer  of  judgment  which  accompanies  every  pleading 
as  a  valuable  addition  to  the  simple  statement  of  the  fact. 
But  unfortunately  the  state  of  the  Law  in  Virginia  is 
such,  that  the  benefit  of  this  contrivance  is  almost  lost, 
and  the  whole  subject  is  very  imperfectly  understood. 
This  happens  thus. 

In  Virginia,  ns  in  England,  it  is  the  duty  of  the  Clerk 
when  the  defendant,  being  first  duly  summoned,  fails  to 
appear  and  plead,  to  enter  judgment  by  default.  But  the 
effect  of  this  judgment  is  suspended  until  the  next  term  of 
the  Court,  and  if  no  motion  on  the  part  of  the  defendant 
is  then  made,  it  is  said  to  be  confirmed,  and  stands  on  the 
record  as  a  judgment  of  the  Court  at  that  term. 


THE    PRINCIPLES    OF    PLEADING.  25 

Now  a  moment's  reflection  will  convince  the  reader  that 
in  cases  in  which  the  defendant  has  not  been  duly  sum- 
moned, nothing  will  be  done  to  call  the  attention  of  the 
Court  to  them,  and  that  the  Court  will  have  had  no  more 
to  do  with  them,  than  if  their  effect  had  not  been  suspended. 
But  they  are  placed  by  this  regulation  in  such  an  equivocal 
position,  that  it  is  not  easy  to  see  how  they  are  to  be 
treated  as  mere  ministerial  acts  of  the  Clerk.  It  seems 
that  most  persons  consider  them  as  out  of  the  power  of 
the  same  Court,  inasmuch  as  no  Court  can  make  any 
change  in  its  own  records  after  the  end  of  the  term. 
Thus  it  happens  that  when  judgment  has  gone,  as  by 
confession,  against  a  man  who  knew  nothing  of  the  suit 
until  visited  by  the  Sheriff  with  his  execution,  he  can 
have  no  relief,  unless  a  superior  Court  will  reverse  the 
judgment. 

But  no  judgment  can  be  reversed  for  irregularity,  or 
for  any  thing  but  error,  apparent  on  the  face  of  the  record. 
But  the  pleadings  alone  constitute  the  record,  and  error 
consists  in  this  —  that  taking  the  law  as  a  major  premise, 
and  the  facts  established  in  the  record  as  the  minor,  the 
judgment  is  not  the  just  conclusion  from  these  premises. 
But  if  the  judgment  be  the  only  true  and  just  conclusion 
from  the  facts  so  established,  and  the  law  as  rightly 
understood,  there  is  no  error.  Now  here  is  a  declaration 
uncontroverted,  setting  forth  a  bond  duly  executed  for  ten 
pounds,  and  a  judgment  for  that  sum.  This  is  all  the 
record  shows,  and  the  Court  of  error  on  looking  into  it, 
find  the  judgment  perfectly  right.  The  blunder  may  have 
been  that  the  Clerk,  in  making  up  the  rules,  mistook  the 
return  on  one  writ  for  that  on  another,  and  entered  it 
accordingly.  At  the  next  rule  day  he  notes  the  supposed 
default  cf  the  defendant,  and  at  the  next  enters  judgment. 
At  the  next  term,  the  defendant,  knowing  nothing  of  the 
3 


26  THE    PRINCIPLES    OF    PLEADING. 

matter,  does  not  appear,  and  the  judgment  stands  con- 
firmed sub  silentio.  Execution  sued  out  against  him  first 
apprises  him  of  what  has  been  done.  He  appears  and 
moves  to  set  aside  the  judgment,  and  is  told  that  the  Court 
has  no  power  over  its  own  judgments  of  a  former  term. 
He  then  sues  out  a  writ  of  error.  The  superior  Court 
examines  the  record,  finds  no  error,  and  affirms  the 
judgment  with  costs. 

Is  there  no  remedy  ?  There  certainly  should  be,  for 
the  man  had  a  good  defence,  which  he  has  had  no  opportu- 
nity of  making.  He  is  sure  he  has  a  right,  and  he  is  told 
that  there  is  no  right  without  a  remedy.  He  has  tried  the 
law,  and  finds  none  there.  Surely  his  remedy  must  be  in 
equity,  and  so  he  blunders  into  a  court  of  Equity,  which, 
sooner  than  suffer  so  flagrant  a  wrong  to  pass  unredressed, 
determines  to  correct  one  blunder  by  another,  usurps  a 
jurisdiction  which  does  not  properly  belong  to  it,  and  the 
defendant,  after  incurring  unrequited  costs  equal  to  the 
whole  debt,  is  put  in  condition  to  contest  the  demand, 
which  is  again  brought  against  him  at  Law. 

I  beg  leave  here  to  intimate  the  opinion,  that  the  mere 
nominal  confirmation  of  the  judgment  by  the  Court  does 
not  change  its  character ;  that  it  never  did  become  the  act 
of  the  Court,  and  that  the  fault  is  still  no  more  than  a 
blunder  of  the  Clerk,  which  the  Court,  whose  officer  he  is, 
should  correct.  But  I  am  inclined  to  believe  that  such  is 
not  the  opinion  of  the  profession.  It  certainly  is  not  that 
of  the  Legislature,  which  lately  passed  a  law  authorising 
the  Circuit  Court  to  correct  such  mistakes  in  its  own 
proceedings.  But  this  can  only  be  done  by  writ  of  error 
coram  vobis,  which,  as  I  shall  presently  show,  is  quite 
superfluous,  and  moreover  the  act  does  not  extend  to  the 
County  Court,  where  such  blunders  are  most  apt  to  occur, 
and  where,  according  to  the  common  notion  on  the  subject, 
they  are  still  irreparable. 


THE    PRINCIPLES    OF    PLEADING.  27 

All  this  confusion  and  mischief  has  its  rise  in  the  fear 
of  the  Legislature  to  trust  the  Clerk  with  a  power,  which, 
rightly  understood,  and  properly  regulated,  he  could  not 
abuse,  and  which  has  only  become  dangerous  in  consequence 
of  the  attempt  to  restrain  it. 

If  I  shall  be  so  fortunate  as  to  call  the  attention  of  our 
lawgivers  to  this  matter,  and  have  succeeded  in  making 
what  I  have  said  intelligible,  I  shall  have  rendered  an 
essential  service  to  the  profession,  and  to  the  whole  com- 
munity. The  true  safeguard  against  abuse  is  to  leave  the 
plaintiff's  attorney  to  take  judgment  at  his  peril,  requiring 
him  always  to  sign  his  name  on  the  margin  of  the  entry, 
making  him  liable  for  all  costs  of  both  parties,  if  the 
judgment  be  set  aside  for  irregularity,  as  well  as  to  the 
action  of  the  defendant  for  any  damage  occasioned  by  his 
precipitancy.  There  is  no  need  of  any  writ  of  error  coram 
vobis,  which  with  us  is  but  a  cumbrous  and  absurd  form  of 
giving  notice  of  the  proposed  motion  to  the  other  party.  A 
simple  notice  in  writing  would  answer  to  apprise  the 
plaintiff  when  a  motion  to  set  aside  the  judgment  would 
be  made.  * 

I  have  dwelt  thus  long  on  this  matter,  not  so  much  on 
account  of  the  injury  which  may  result  to  parties  in 
controversy  from  the  well-intentioned  blunder  of  the 
legislature,  as  because  the  equivocal  position  in  which  they 
have  placed  judgments  by  default  has  blinded  the  profes- 
sion to  the  important  distinction  between  Irregularity  and 
Error.  This  has  a  tendency  to  confuse  the  whole  system 
of  pleading,  by  making  it  often  difficult  to  see  the  connex- 
ion between  the  premises  of  law  and  fact,  and  the  conclusion 
in  the  judgment,  which  runs  through  the  system. 

*  The  writ  of  Error  coram  vobis,  in  England  is  issued  out  of  the 
Chancery  and  gives  command  and  authority  to  the  Court  to  act.  Who 
issues  it  here  ?  The  Clerk  of  the  same  Court  ?  So  it  seems,  and  thus 
he,  the  minister,  gives  command  and  authority  to  his  immediate  Superior 
the  Judge,  to  correct  his  {the  Cleric's)  blunder.     More  of  this  hereafter. 


28  THE    PRINCIPLES    OP    PLEADING. 

I  have  thus  shown  how  the  original  simplicity  of  the 
pleadings,  consisting  at  first  of  mere  statements  of  fact,  has 
been  modified  — 

1.  By  the  supposed  necessity  of  showing  the  connexion 
of  the  record  with  the  original  writ,  and 

2.  By  the  means  devised  to  compel  the  parties,  from 
time  to  time,  to  attend  to  the  prosecution  and  defence  of 
their  suits. 

The  first  of  these  modifications  I  have  shown  to  be 
superfluous,  and  to  have  been  properly  dispensed  with. 

The  second  I  have  endeavored  so  to  explain,  as  to 
make  the  reader  sensible  of  its  use  and  value,  and  of  the 
importance  of  the  very  slight  change  I  have  suggested. 

But,  though  any  allusion  to  the  writ  is,  at  this  day, 
wholly  superfluous,  the  necessity  for  it  in  England  gave 
rise  to  a  device,  contrived  to  evade  it,  which  has  been 
copied  in  most  states  of  this  Union.  I  mean  the  use  of 
the  words  '  in  custody  &c.'  in  the  caption  of  the  Declara- 
tion. With  us  these  words  have  no  meaning  at  all.  They 
belong  to  the  practice  of  the  King's  bench,  and  even  there 
mean  what  is  not  true,  though  it  once  was. 

That  Court,  we  have  seen,  was  at  first  by  Commission 
the  great  criminal  tribunal  and  conservator  of  the  peace  of 
the  Realm.  It  was  only  by  special  delegation  from  the 
King  himself  that  it  was  constituted  a  court  for  trying 
civil  causes,  except  such  as,  involving  a  breach  of  the 
peace,  might  have  been  supposed  to  belong  to  them,  as 
incidental  to  (heir  proper  function  of  preserving  the  peace 
and  inquiring  into  all  branches  of  it.  In  all  cases  properly 
b<  longing  to  it  ex  officio,  it  was  the  practice  of  that  court 
to  bring  in  the  body  of  the  defendant  by  coercion  instead 
of  summons,  and  he  was,  or  was  supposed  to  be,  pending 
the  investigation,  in  the  custody  of  the  Marshal  of  the 
Court.  Now,  while  the  defendant  was  thus  confined,  an 
an  original  writ,  to  bring  him  before  the  court  at  the  suit 


THE    PRINCIPLES    OF    PLEADING.  29 

of  any  new  complainant,  would  be  superfluous.  Moreover, 
if  such  plaintiff  should  be  inclined  to  sue  in  the  Common 
Pleas,  a  writ  returnable  into  that  Court  would  be  worse 
than  superfluous,  as  the  defendant,  being  in  custody,  could 
not  obey  the  summons.  The  King's  Bench  being  the  only 
court  in  which  he  could  appear,  he  must  be  sued  there,  and 
he  was  there  already.  Could  any  thing  more  be  necessary 
then  but  to  file  a  declaration  against  him,  and  give  him 
notice  of  it,  by  serving  him  with  a  copy  ? 

It  was  probably  thought,  at  first,  that  this  was  not  quite 
sufficient.  The  use  of  the  writ,  as  we  have  seen,  was  not 
only  to  summon  the  defendant,  but  to  give  the  Court 
authority  to  try  the  cause.  But  when,  in  process  of  time, 
the  King  had  ceased  to  have  any  thing  to  do  with  judicial 
proceedings,  when  it  had  come  to  be  looked  upon  as  a 
matter  of  right  in  every  man  to  sue  out  a  writ  at  his  own 
pleasure,  and  when  long  usage  had  established  the  juris- 
diction of  the  Court,  so  that  it  seemed  to  be  exercised  ex 
officio,  it  was  thought  absurd  to  require  the  plaintiff  to  go 
to  the  unnecessary  and  not  trivial  expense  of  suing  out  a 
writ,  all  the  purposes  of  which  were  already  accomplished. 
Instead  of  issuing  a  writ  then,  the  plaintiff,  in  the  caption 
of  his  declaration,  set  forth  that  the  defendant  was  already 
'  in  the  custody  of  the  Marshal  of  the  King's  Bench,'  and 
served  him  with  notice  of  it. 

It  will  thus  be  seen  that  the  first  step  in  the  cause  was 
the  filing  of  the  declaration,  and  hence,  in  all  such  cases, 
in  the  King's  Bench  the  commencement  of  the  action  dates 
from  that,  and  not,  as  before,  from  the  writ,  for  there  was 
none.  The  importance  of  knowing  this  (which  seems  to 
concern  us  so  little)  may  be  judged  of  by  the  fact,  that  a 
Court  in  Virginia,  (not  the  highest,  but  a  Circuit  Court) 
once  decided,  that  the  defendant  was  liable  to  be  sued  for 
a  debt  not  yet  elite,  because  the  plaintiff  had  taken  care  not 
to  file  his  declaration  until  it  teas  due.  This  decision  was 
3* 


30  THE    PRINCIPLES    OF    PLEADING. 

justified  on  the  authority  of  the  Court  of  King's  Bench, 
where  it  was  ascertained  that  the  declaration  was  consid- 
ered as  the  commencement  of  the  action. 

I  mention  this  in  no  insidious  spirit,  (for  I  have  not 
named  the  Court)  but  to  show  the  reader  that  it  is  some- 
times necessary  to  acquaint  ourselves  with  obsolete  law. 
and  even  with  that  which  never  was  law  for  xis,  that  we 
may  acquire  a  right  understanding  of  the  law  as  it  actu- 
ally is,  among  us,  at  this  day.  I  dismiss  the  subject  by 
saying  that  the  words 'in  custody  &c.' have  no  meaning 
with  us,  are  superfluous,  and  ought  to  be  omitted,  not 
because  they  do  any  harm  in  the  particular  case,  but  they 
serve  to  puzzle  the  student,  and  add  to  the  mysticism  in 
which  the  beautiful  and  simple  science  of  pleading  has 
been  involved. 

I  pi'oceed  to  speak  of  those  modifications  of  the  system 
which  have  been  produced  by  the  peculiar  structure  of  the 
Nisi-prius  Courts  in  England. 

When  the  King's  courts  became  stationary  at  Westmin- 
ster, and  parties  appearing  before  them  had  arrived  at  an 
issue  of  fact,  a  question  presently  arose,  whether  the  jury, 
which  was  to  inquire  of  the  fact,  should  be  taken  from  the 
place  where  the  fact  might  be  supposed  to  have  taken 
place,  or  from  some  other  part,  and  if  from  the  former, 
then  whether  the  jury  and  witnesses  should  be  brought  to 
the  Court,  or  the  Court  should  go  to  them.  Either  would 
be  inconvenient,  and  a  sort  of  middle  ground  was  taken. 

1.  If,  at  any  time,  the  defendant  had  not  pleaded,  and  the 
demand  of  the  plaintiff  was  not  for  any  specific  thing,  but 
only  for  damages  because  of  some  wrong  done,  the  judg- 
ment could  go  no  farther  than  to  say  that  the  plaintiff 
'  ought  to  recover  the  damages  by  him  sustained.'  These 
were  to  be  assessed  by  a  jury,  and,  in  this  case  the  course 
(if  proceeding  adopted  was,  to  send  down  the  record  to  the 
Sheriff  of  the  county  where  the  affair  was  said  to  have 


THE    PRINCIPLES    OF    PLEADING.  31 

taken  place,  accompanied  by  a  writ  commanding  him  to 
summon  a  jury,  who,  being  duly  sworn  by  him,  and  having 
heard  the  testimony  in  his  presence,  proceeded  to  assess 
the  damages.  This  assessment  was  returned  by  him  to 
the  Court  along  with  the  writ,  and  then  followed  a  second 
judgment  for  the  damages  so  assessed. 

2.  If  the  parties  arrived  at  an  issue  of  fact,  it  was 
decided  that  this  too  should  be  sent  for  trial  to  the  county, 
where  the  fact  was  supposed  to  have  happened.  But  a 
trial  of  this  sort  inter  partes  was  likely  to  give  rise  to  ques- 
tions which  the  Sheriff  was  incompetent  to  decide,  and 
hence  a  deputation  was  sent  out  from  the  Court  itself  to 
try  it.  When  thus  sent  out,  the  Judges  were  called 
Judges  at  nisi  prius,  and  such  a  deputation  was  sent  twice 
every  year  into  every  county  in  the  Kingdom,  to  try  such 
issues  of  fact  as  might  be  sent  out  from  the  Courts  at 
Westminster. 

A  more  particular  account  of  these  Nisi  prius  Courts  is 
here  unnecessary.  It  is  enough,  that  as  soon  as  it  was 
determined  that  each  issue  of  fact  must  be  tried  in  the 
county  where  the  fact  put  in  issue  occurred,  it  became 
necessary  that  the  record  should  show  where  that  was. 
For  this  purpose  it  was  required  of  each  party,  that,  in 
stating  any  traversable*  fact,  he  should  charge  that  it  took 
place  in  some  named  county,  and  if  that  fact  became  the 
point  of  the  issue,  the  record  was  sent  to  that  county. 
This  gave  rise  to  that  part  of  every  pleading  which  is 
called  '  laying  the  venue,'  which  was  indispensable.  It  is 
obvious  indeed  that  the  legal  effect  of  a  promise  or  a 
payment  cannot  be  influenced  by  the  place  where  such 
are  made,  but  inasmuch  as  the  rule  was  peremptory  that 

*  This  word  '  traversable  '  is  applied  to  facts  of  such  importance  that 
the  event  of  the  suit  might  be  made  to  depend  on  their  truth  or  false- 
hood. If  traversed  (i.  e.  denied)  an  issue  might  be  made  up,  and  that 
issue  being  triable  only  where  the  fact  occurred,  the  place  must  be  named. 


32  THE    PRINCIPLES     OF    PLEADING. 

each  issue  must  be  tried  there  and  no  where  else,  it  fol- 
lowed that  no  trial  could  take  place  on  any  declaration 
plea  &c.  &c.  in  which  no  venue  was  laid.  Hence  the 
omission  was  fatal.  Of  the  relaxations  and  changes  of 
this  rule  there  is  no  need  to  speak.  It  is  enough  to  say 
that  the  reason  of  it  has  no  existence  with  us,  and  hence 
that  the  venue  is  superfluous.  It  can  do  no  harm  indeed, 
but  it  is  absurd  to  make  it,  as  it  is  in  England,  an  indis- 
pensable part  of  the  pleading.  The  want  of  it  should  be 
no  ground  of  objection,  even  as  for  want  of  form. 

It  remains  to  speak  of  the  modification  of  pleading 
growing  out  of  the  trial  by  jury'. 

If  the  question  be  asked  '  for  which  party  should  the 
jury  find,  in  case  no  evidence  at  all  should  be  offered,' 
the  answer  will  be,  that  he  whose  duty  it  is  to  prove  the 
fact  in  issue,  having  failed  to  do  so,  it  is  impossible  that  the 
finding  can  be  in  his  favor.  But  there  must  be  a  verdict, 
and  therefore  it  must  be  in  favor  of  the  other  party. 
Hence  it  ought  clearly  to  appear  upon  the  record  which 
party  bears  the  onus  probandi.  ISTow  the  logical  maxim 
that  a  negative  cannot  be  proved,  plainly  points  out  him 
who  affirms  as  the  party  from  whom  the  proof  should  pro- 
ceed. But  it  is  clearly  desirable  that  this  matter  should  be 
decided  in  some  preliminary  stage  of  the  proceedings,  and 
not  be  left  to  be  adjusted  after  the  joining  of  issue.  It  is  a 
matter  too  to  be  settled  by  the  whole  Court,  and  not  left  to 
the  hasty  decision  of  the  Judge  at  nisi  prius.  It  should 
therefore  be  decided  by  the  whole  Court,  and  of  course 
before  the  issue  is  joined. 

To  bring  this  question  to  a  decision,  it  was  required  that 
every  allegation  of  a  traversable  fact  should  be  followed 
by  a  formula,  importing  that  he  who  pleads  it  is  prepared 
to  prove  it,  if  called  upon.  On  the  other  hand  a  formula 
Was  digested  by  which  the  adverse  party,  if  he  should  think 
proper  to  do   so,  might  call   for  the  proof.     The  first  of 


THE    PRINCIPLES    OF    PLEADING.  33 

these  is  found  in  the  words  '  and  this  he  is  ready  to  verify,' 
or  prove  to  be  true.  The  other  is  expressed  by  adding  to 
the  denial  of  the  fact  alleged  the  words  '  and  of  this  he  puts 
himself  upon  the  country,'  or  'this  he  prays  may  be 
inquired  of  by  the  country.' 

Such  is  the  meaning  of  these  words.  Their  primary  use 
was  to  prepare  the  case  for  a  decision  of  the  question  '  on 
which  party  the  onus  probandi  lay.'  If  he  who  ought  to 
assume  it  shrank  from  doing  so,  and  omitted  to  conclude  in 
either  form,  his  pleading  was  adjudged  bad,  and  he  was 
required  to  amend  it.  If  he  went  farther,  and  concluded 
to  the  country  when  he  ought  to  have  concluded  with  a 
verification,  the  consequence  was  the  same.  In  this  way 
an  opportunity  was  afforded  for  the  determination  of  a 
question  which  might  become  of  decisive  importance.  The 
Judge  of  nisi  prius  found  that  decision  expressed  in  the 
form  in  which  the  record  came  clown  to  him,  and,  in  case 
no  evidence  at  all  were  offered,  understood  himself  instruct- 
ed to  tell  the  jury  that  they  must  find  against  the  party 
who  had  avowed  himself  ready  to  prove  the  fact  in  issue. 

Such  I  conceive  to  have  been  the  origin  of  these  formula. 
In  general  they  mean  neither  more  nor  less  than  this, 
although  there  are  some  few  cases  to  which  this  account  of 
the  matter  does  not  apply.  Of  these  I  propose  to  speak 
in  the  proper  place.  But  it  may  be  seen  that  the  form  is 
convenient  as  affording  an  occasion  for  adjusting  all  prelimi- 
naries before  the  trial,  and  therefore  ought  to  be  preserved. 

At  this  point  it  would  seem  that  the  pleadings  had  been 
brought  to  a  close.  But  the  word  '  Country '  in  the  above 
formula  means  '  a  Jury.'  Now  at  common  law  there  were 
various  modes  of  trying  a  question  of  fact,  of  which  the 
trial  by  jury  was  not  always  the  most  proper.  If  the 
party  to  whom  this  mode  of  trial  was  thus  proposed  thought 
proper  to  insist  on  some  other,  he  had  an  opportunity  to 
do  so,  by  objecting  to  his  adversary's  pleading  because  it 


31  THE    PRINCIPLES    OF    PLEADING. 

had  proposed  his  mode  of  trial.  If  he  did  not  mean  to 
make  this  objection,  or  to  insist  that  his  adversary  ought  to 
have  concluded  with  a  verification,  he  expressed  his  acqui- 
escence by  the  words,  f  and  the  said  A.  B.  doth  the  like ; ' 
and  so  the  issue  is  joined. 

At  this  day,  the  party  to  whom  a  trial  by  jury  of  an  issue 
of  fact  is  thus  proposed  has  no  choice  about  the  matter, 
and  this  similiter,  as  it  is  called,  is  superfluous.  The  time 
allowed  him  to  decide  what  he  will  do  is  unnecessarily 
lost,  and  there  is  no  reason  why  the  issue  should  not  be 
considered  as  joined  as  soon  as  tendered,  unless  the  ad- 
verse party,  should,  at  the  proper  time  object  (or  demur) 
to  the  pleading  as  concluding  improperly,  or  for  some 
other  cause.  The  practice  in  England,  at  this  day,  corres- 
ponds with  this  idea.  The  similiter  is  added  by  the  Clerk, 
with  an  understanding  that  the  party  may,  if  he  chooses, 
strike  it  out  altogether,  and  demur.  I  think  it  would  be 
more  in  harmony  with  the  system  to  omit  it  altogether, 
and  let  the  party  demur  if  he  should  think  proper,  thus 
substituting  an  issue  of  law  for  the  issue  of  fact,  which 
would  otherwise  be  complete. 

To  this  view  of  the  modifications  superinduced  on  the 
naked  skeleton  of  the  pleadings  as  already  exhibited,  by 
the  causes  above  mentioned,  I  will  add  that  at  some  time 
(perhaps  from  a  very  early  time)  it  was  required  that  in 
alleging  a  traversable  fact,  the  day  of  its  occurrence  should 
be  stated.  This  is  as  proper  with  us  as  in  England.  But 
it  is  not  always  necessary  to  prove  the  day  as  laid.  Why 
then  state  it  in  such  cases?  Might  it  not  be  better  to 
omit  it  when  it  needs  not  be  proved?  This  would  afford 
the  adverse  party  an  opportunity  of  obtaining,  in  a  pre- 
liminary stage  of  the  cause,  the  decision  of  the  Court  as  to 
the  necessity  of  proving  it.  If  no  day  be  named,  the 
pleading  might  be  demurred  i<>  for  want,  of  it.  If  it  needs 
to  l>c   proved    the    demurrer  will    be  sustained,  and   the 


THE    PRINCIPLES    OF    PLEADING.  35 

party  required  to  name  a  day,  which  he  is  thus  admonished 
that  he  must  prove  as  laid.  If  the  day  needs  not  to  be 
proved,  the  demurrer  will  be  overruled,  and  the  party 
discharged  from  the  necessity  of  providing  proof  on  that 
point. 

In  closing  this  sketch,  I  will  present  to  the  reader  a 
transcript  of  the  record  of  the  above  case  between  Doe 
and  Roe  as  it  would  now  stand  if  formally  drawn  out  in  a 
Virginia  Court.  I  will  then  add  a  transcript  of  the 
same  as  it  would  stand  lopt  of  those  excrescences  which 
I  have  endeavored  to  show  to  be  superfluous. 

_  John  Doe  complains  of  Richard  Roe  in  custody  &c.  of  a 

Declaration.      ,         ,        ,  ,  ,  .._,         ,  J        . 

plea  that  he  render  to  the  said  John  the  sum  of  ten 

pounds,  which  the  said  Richard  owes  to,  and  unjustly  detains  from  the 
said  John.  For  that  whereas  the  said  Richard  on  the  first  day  of 
January  1840,  at  the  parish  of  Brat  on  and  county  of  York,  by  his 
certain  writing  obligatory  sealed  with  his  seal  and  to  the  Court  now 
shown,  the  date  whereof  is  the  same  day  and  year  aforesaid,  acknowl- 
edged himself  to  be  indebted  to  the  said  John  in  the  sum  of  ten 
pounds,  yet  the  said  Richard,  though  often  required,  has  not  paid  to 
the  said  John  the  said  stun  of  ten  pounds,  by  the  said  writing  he 
ought  to  have  done,  but  to  pay  the  same  or  any  part  thereof  has 
hitherto  altogether  refused,  and  yet  does  refuse,*  to  the  damage  of  the 
said  John  ten  dollars.f      Wherefore  he  brings  suit. 

And  the  said  Richard  Roe  $  comes  and  defends  the  wrong 
and  injury  when  fye.  where  <Sfr.  and  for  plea  says  that  the 
said  John  Doe  his  action  aforesaid  against  him  ought  not  to  have  and 
maintain  because  he  says  that,  after  the  making  and  delivery  of  the 
writing  obligatory  in  the  declaration  of  the  said  John  mentioned,  to 
wit  on  the  first  day  of  May  1 840,  at  the  parish  and  county  aforesaid, 

*  Damages  are  not  now  awarded  es  nomine,  except  perhaps  in  one 
rare  case.  The  name  of  such  damages  now  is  interest,  which  is  given 
by  Statute  without  being  demanded.  The  prayer  of  damages  is  there- 
fore superfluous,  and  ought  to  be  dispensed  with,  except  in  the  one  case 
alluded  to  above. 

t  In  their  primitive  meaning  these  words  are  obsolete.  In  any  sense 
they  are  superfluous. 

\  This  is  the  skeleton  of  a  form  the  origin  of  which  I  know  not.  The 
dry  bones  are  useless. 


36  THE    PRINCIPLES    OF    PLEADING. 

the  said  John  by  his  certain  deed  of  release  sealed  with  his  seal,  and 
to  the  Court  now  shown,  the  date  whereof  is  the  same  day  and  year 
last  aforesaid,  did  reraise  release  and  forever  quit  claim  to  the  said 
Richard  the  said  writing  obligatory,  and  all  and  every  part  of  the  said 
sum  of  ten  pounds  due  thereby  *  as  by  the  said  deed  of  release,  reference 
thereto  being  had,  more  fully  will  appear  ;  and  this  he  is  ready  to  verify. 
"Wherefore  the  said  Richard  prays  judgment  of  the  Court,  if  the  said 
John  his  action  aforesaid  against  him  ought  to  have  and  maintain. 

And  the  said  John  Doe  says  t  that  by  any  thing  by  the 
said  Richard  in  his  plea  above  pleaded,  he  ought  not  to  be 
barred  of  his  action  aforesaid,  because  he  says,  that  at  the  time  of  the 
sealing  and  delivery  of  the  said  supposed  deed  of  release,  there  was 
thereto  under  written  a  condition  in  the  words  and  figures  following, 
to  wit :  '  sealed  and  delivered  to  John  Denn,  to  be  by  him  delivered  to 
Richard  Roe,  whensoever  before  the  first  day  of  August  1840,  the  said 
Richard  Roe  shall  deliver  to  the  said  John  Denn  a  deed  of  release 
duly  executed  by  Jane  Styles,  whereby  the  within  named  John  Doe 
shall  be  forever  released  and  discharged  from  a  certain  debt  of  ten 
pounds  due  by  the  said  John  Doe  to  the  said  Jane  as  is  witnessed  by 
the  writing  obligatory  of  the  said  John  to  the  said  Jane  bearing  date 
the  first  day  of  March  1 840,  and  not  otherwise '  and  so  the  said  John 
Doe  says  that  the  said  supposed  deed  of  release  of  him  the  said  John 
was  by  him  delivered  to  the  said  John  Denn  as  an  escrow  with  the  said 
condition  so  under  written  to  wit  on  the  first  day  of  May  1840,  at  the 
parish  and  county  aforesaid,  and  this  he  is  ready  to  verify ;  wherefore 
he  prays  judgment  and  his  debt  aforesaid  J  together  with  his  damages 
by  reason  of  the  detention  of  the  same  to  be  adjudged  to  him. 

And  the  said  Richard  Roc  says  §  that  by  reason  of  any 
thing  by  the  said  John  Doe  in  his  plea  last  above  set  forth 
he  ought  not  to  have  and  maintain  his  action  aforesaid  because  he  says, 
that  after  the  making  and  delivery  of  the  said  deed  of  release  of  the 
said  John  Doe  to  the  said  John  Denn,  to  wit  on  the  first  day  of  July 
1840,  at  the  parish  and  county  aforesaid,  he  the  said  Richard  did 
deliver  to  the  said  John  Denn  a  deed  of  release  of  the  said  Jane 
S)  |  lea  scaled  with  the  seal  of  the  said  Jane  in  the  words  and  figures 
following  to  wif  'I  Jane  Styles  do  hereby  remise  release  and  for- 
ever quit  claim  to  John  Doe  a  certain  writing  obligatory  of  the  said 

*  This  is  usually  inserted,  but  it  is  needless. 

t  This  is  superfluous.    The  prayer  of  judgment  in  conclusion  is  every 
firing. 

i    Tins  is  superfluous  for  the  reason  already  given. 
§  Superfluous  for  the  reason  already  given. 


TIIE    PRINCIPLES    OF    PLEADING.  87 

John  Doe  to  me  for  the  sum  of  ten  pounds,  bearing  date  the  first  day 
of  March  1840,  and  do  hereby  forever  discharge  the  said  John  of  the 
same,  and  of  the  said  debt  and  every  part  thereof.  Witness  my  hand 
and  seal  this  tenth  day  of  June  1840.'  And  this  the  said  Richard  is 
ready  to  verify ;  wherefore  he  prays  judgment  if  the  said  John  his  ac- 
tion aforesaid  against  him  ought  to  have  and  maintain. 

And  the  said  John  Doe  says*  that  by  reason  of  any  thing 

SlKKEJOINDER.  .  ...  ,  ,  ,  /      ,      , 

by  the  said  luchard  J\oe  m  his  plea  last  above  set  forth  he 

ought  not  to  be  barred  of  his  action  aforesaid,  because  he  says  that  after 

the  delivery  of  the  said  supposed  deed  of  release  of  the  said  John 

Doe,  and  before  the  sealing  and  delivery  of  the  said  supposed  deed  of 

release  of  the  said  Jane  Styles,  to  wit  on  the  first  day  of  June  1840,  at 

the  parish  and  County  aforesaid,  the  said  Jane  Styles  intermarried  with 

a  certain  John  Styles,  and  that  at  the  time  of  the  sealing  and  delivery  of 

the  said  supposed  deed  of  release  of  the  said  Jane,  the  said  John  Styles 

was  in  full  life,  and  so  the  said  Jane  was  then  and  there  a  feme  covert,  to 

wit,  the  wife  of  the  said  John  Styles,  and  this  he  is  ready  to  verify. 

Wherefore  the  said  John  Doe  prays  judgment,  and  his  debt  aforesaid,t 

together  with  his  damages  by  reason  of  the  detention  of  the  same  to  be 

adjudged  to  him. 

„  And  the  said  Richard  Roe  says  that  the  surrejoinder  of 

Demcrrek.  "  J 

the  said  John  Doe  to  the  rejoinder  of  the  said  Richard, 

and  the  matters  therein  contained,  in  manner  and  form  as  the  same 

are  above  pleaded  and  set  forth,  are  not  sufficient  in  law  for  the  said 

John  Doe  to  have  and  maintain  his  action  aforesaid  against  the  said 

Richard,  and  that  the  said  Richard  is  not  bound  by  the  law  of  the 

land  to  answer  the  same  \  and  this  he  is  ready  to  verify.     Wherefore, 

for  want  of  a  sufficient  surrejoinder  in  this  behalf,  he  prays  judgment  if 

the  said  John  his  action  aforesaid  against  him  ought  to  have  and  maintain. 

*  Superfluous  for  the  reason  already  g-iven. 

t  This  is  superfluous  for  the  reason  already  given. 

J  The  verification  of  a  legal  proposition  to  the  court,  which  is  supposed 
to  know  the  law,  is  plainly  absurd,  and  its  use  here  only  serves  to 
obscure  its  meaning-  and  purpose  in  those  places  where  it  is  proper.  It 
is  to  be  remembered  too,  that  any  thing-  meant  for  a  demurrer,  which  is 
not  a  mere  nullity,  will  be  good  enough.  The  reason  is,  that  it  could 
only  be  objected  to  by  demurrer,  and  if  the  pleading  demurred  to  be 
bad,  the  Court,  which  always  goes  back  to  the  first  fault,  will  condemn 
that,  no  matter  how  badly  the  demurrer  itself  be  drawn.  To  demur  to 
a  demurrer  therefore  would  be,  in  effect  to  join  in  demurrer.  Hence 
the  party  is  always  under  the  necessity  of  joining,  and  the  demurrer 
should  be  considered  as  joined  as  soon  as  tendered.  It  follows  that  the 
form  of  joinder  found  here  is  superfluous. 

4 


38  THE    PRINCIPLES    OF    PLEADING. 

And  the  said  John  Doe  says  that  the  surrejoinder,  and 
the  matters  and  tilings  therein  contained,  in  manner  and 
form  as  the  same  are  above  pleaded  and  set  forth,  are  sufficient  in  law 
for  him  the  said  John  Doe  to  have  and  maintain  his  aforesaid  action 
against  him  the  said  Richard  Eoe.  And  this  the  said  John  Doe  is 
ready  to  verify,  and  prove  the  same  as  the  court  here  shall  direct  and 
award.  Wherefore,  inasmuch  as  the  said  Richard  Roe  has  not 
answered  the  said  surrejoinder,  nor  hitherto  in  any  manner  denied  the 
same,  the  said  John  Doe  prays  judgment,  and  his  debt  aforesaid, 
together  with  his  damages  by  reason  of  the  detention  thereof  to  be 
awarded  to  him. 

An  English  pleader  would  see  that  in  this  record  there 
are  fewer  words  than  he  would  use.  I  have  in  fact 
omitted  or  abridged  every  thing  that  is  not  deemed  neces- 
sary even  with  us,  Avhen  the  parties  do  not  agree  to  dis- 
pense with,  all  form.  But  even  here  I  have  marked  in 
Italics  what  I  deem  superfluous,  and  given  my  reasons  in 
the  notes  below.  In  the  following  sketch  it  may  be  seen 
how  the  record  would  stand  stript  of  all  redundancies. 

John  Doe  complains  of  Richard  Roe,  of  a  plea  that  he  render  to  the 
said  John  the  sum  of  ten  pounds,  which  the  said  Richard  owes  to  and 
unjustly  detains  from  the  said  John.  For  that  whereas  the  said  Rich- 
ard, on  the  first  day  of  January-1840,  by  his  certain  writing  obligatory, 
6  aled  with  his  seal  and  to  the  Court  now  shown,  the  date  Whereof  is 
the  same  day  and  year  aforesaid,  acknowledged  himself  to  be  indebted 
to  the  said  John  in  the  said  sum  of  ten  pounds,  yet  the  said  Richard, 
though  often  required,  has  not  paid  the  same  to  the  said  John,  but  to 
pay  the  same  has  hitherto  altogether  refused,  and  yet  docs  refuse. 

And  the  said  Richard  Roe  says  that  after  the  making  and  delivery 
of  the  writing  obligatory  in  the  declaration  of  the  said  John  mention- 
ed, to  wit  on  the  firs!  day  of  May  18  10,  the  said  John,  by  bis  certain 
(I.  il  of  relea  le,  seal(  d  with  his  seal  and  to  the  court  now  shown,  the 
date  whereof  is  the  some  day  and  year  aforesaid,  did  remise  release 
and  forever  quil  claim  to  the  said  Richard  the  said  writing  obligatory 
and  all  an  1  every  pari  of  the  said  sum  often  pounds  due  thereby,  and 
this  he  is  ready  to  verify.  Whereupon  he  prays  judgmenl  if  the  said 
John  his  action  aforesaid  oughl  to  have  and  maintain  againsl  him. 

And  the  said  John  Doe  says  that!  al  the  time  of  the  sealing  and 
delivery  of  the  said  supposed  deed  of  release,  there  was  thereto  under- 


THE    PRINCIPLES    OP    PLEADING.  39 

written  a  condition  in  the  words  and  figures  following  to  wit  (word  for 
word,  as  before)  and  so  the  said  John  Doe  says  that  the  said  supposed 
deed  of  release  was  delivered  to  the  said  John  Denn  as  an  escrow  with 
the  said  condition  underwritten,  and  this  lie  is  ready  to  verify.  Where- 
fore he  prays  judgment  and  his  debt  aforesaid  to  be  adjudged  to  him. 

And  the  said  Richard  Roe  says  that  after  the  making  and  delivery 
of  the  said  deed  of  release  of  the  said  John  Doe  to  the  said  John  Denn, 
to  wit  on  the  first  day  of  July  1840,  he  the  said  Richard  did  deliver  to 
the  said  John  Denn  a  deed  of  release  of  the  said  Jane  Styles  sealed 
with  her  seal  in  the  words  and  figures  following  to  wit  (word  for  word 
as  before)  and  this  the  said  Richard  is  ready  to  verify.  Wherefore  he 
prays  judgment,  if  the  said  John  Doe  his  action  aforesaid  ought  to 
have  and  maintain  against  him. 

And  the  said  John  Doe  says,  that  after  the  delivery  of  the  said  sup- 
posed deed  of  release  of  him  the  said  John  Doe  to  the  said  John  Denn, 
and  before  the  sealing  and  delivery  of  the  said  supposed  deed  of 
release  of  the  said  Jane  Styles,  to  wit  on  the  first  day  of  June  1840, 
she  the  said  Jane  Styles  intermarried  with  a  certain  John  Styles,  and 
that  at  the  time  of  the  sealing  and  delivery  of  the  said  supposed  deed 
of  release  of  the  said  Jane,  the  said  John  Styles  was  in  full  life,  and  so 
the  said  Jane  was  then  and  there  a  feme  covert,  to  wit  the  wife  of  the 
said  John  Styles.  And  this  he  is  ready  to  verify.  Wherefore  he  prays 
judgment,  and  his  debt  aforesaid  to  be  adjudged  to  him. 

And  the  said  Richard  Roe  says  that  the  matters  and  things  by  the 
said  John  Doe  last  above  pleaded  are  not  sufficient  in  law  for  the  said 
John  Doe  to  have  and  maintain  his  said  action  against  him,  and  that 
he  is  not  bound  by  law  to  answer  the  same.  Wherefore  he  prays 
judgment  if  the  said  John  Doe  his  action  aforesaid  against  him  ought 
to  have  and  maintain. 

To  this  might  be  added  a  judgment  as  follows. 

And  because  it  appears  to  the  Court  that  the  matters  and  things  by 
the  said  John  Doe  last  above  pleaded  are  sufficient  in  law  for  the  said 
John  Doe  to  have  and  maintain  his  said  action  against  the  said  Rich- 
ard Roe,  —  therefore  it  is  considered  by  the  Court,  that  the  said  John  Doe 
recover  of  the  said  Richard  Roe  the  sum  of  ten  pounds  his  debt 
aforesaid  with  interest  from  the  first  day  of  January  1840,  until  the 
same  be  paid  together  with  his  costs  by  him  about  his  suit  in  this  behalf 
expended,  and  that  he  have  thereof  execution. 

This  judgment  concludes  the  history  of  the  case.  Nev- 
ertheless other  questions  may  have  arisen  in  its  progress, 
of  which  nothing  is  here  said.     The  reason  would   be, 


40  THE    PRINCIPLES    OF    PLEADING. 

that,  having  been  decided,  and  the  decision  having  been 
acquiesced  in,  they  had  been  removed  from  the  record  as 
superfluous.  The  explanation  of  this  will  I  hope  make 
plain  a  matter  which  I  am  afraid  is  not  rightly  understood 
by  the  profession  at  large,  and  correct  a  mistake  which  I 
fear  has  led  to  much  blundering  and  mischievous  legislation. 

To  make  myself  clearly  understood  I  beg  leave  to  sup- 
pose exactly  such  a  case  pending  before  one  of  our  Circuit 
Courts.  I  wish  it  also  to  be  supposed  that  the  law  of 
pleading  among  us  at  this  day  were  such,  that  the  above 
record  No.  3.  would  be  an  exact  transcript  of  the  record  a% 
it  should  stand  at  the  conclusion  of  the  controversy. 

Now  it  is  quite  possible  that  the  plaintiff's  counsel  in 
drawing  his  declaration  might  first  have  omitted  some 
indispensable  matter.  In  that  case  what  would  have  been 
the  remedy  of  the  Defendant  ?  The  answer  is,  that  he 
should  demur,  in  the  same  form  which  is  found  in  the  final 
demurrer  to  the  surrejoinder.  In  that  case,  the  Court 
deciding  that  the  matters  and  things  in  the  declaration 
mentioned  were  not  sufficient  in  law  to  maintain  the 
plaintiff's  action,  no  judgment  on  the  demurrer  could  be 
given  in  his  favor,  and  consequently  judgment,  if  given, 
must  be  against  him.  This  was  formerly  always  done  as 
a  matter  of  course  ;  but  the  Courts  afterwards  became  more 
lenient,  first  allowing  him  to  dismiss  his  action,  and  after- 
wards permitting  him  to  withdraw  the  defective  pleading 
and  substitute  another.  That  he  may  do  this  therefore  the 
Court  does  not  at  owqc  pronounce  judgment  on  the  demur- 
rer. It  does  but  decide  the  question  arising  on  it,  leav- 
ing a  short  interval  to  the  party  to  consider  what  he  will 
do.  If  sensible  of  his  error,  he  acquiesces  and  asks  leave 
to  withdraw  the  bud  declaration,  and  to  file  a  new  one. 
Leave  being  given,  the  original  declaration  with  the  demur- 
rer thereto  disappears  from  ihe  record,  and,  a  declaration 
such  as  is  given  above  being  (iled,  in  place  of  it,  the  history 


THE    PRINCIPLES     OP    PLEADING.  41 

of  the  case  goes  on  as  if  no  such  blunder  had  ever  been 
made. 

Again  let  us  suppose  that  the  declaration  was  at  first  just 
what  we  see  in  record  No.  3.;  and  that  the  defendant, 
believing  the  want  of  venue  to  be  a  capital  defect,  should 
wish  to  procure  a  decision  on  that  point.  This  he  does  by 
demurring  for  that  omission.  Now  if  the  Court  should 
think  with  me,  the  demurrer  would  be  overruled,  and  the 
declaration  pronounced  good  ;  and  thereupon  if  the  defend- 
ant were  satisfied  with  the  decision,  he  would  ask  leave  to 
withdraw  his  demurrer  and  plead.  This  being  given,  the 
demurrer  disappears  from  the  record,  and  the  plea,  as  found 
above,  takes  its  place.  If,  on  the  other  hand,  the  defend- 
ant should  feel  convinced  that  the  defect  was  fatal,  he 
would  make  no  such  application.  Judgment  must  there- 
fore be  entered  for  the  plaintiff,  which  would  be  in  the  very 
words  above  set  forth,  and  the  defendant's  remedy  would 
be  to  take  the  case  to  the  Court  of  appeals  where  the  judg- 
ment, if  deemed  erroneous,  would  be  reversed. 

Thus  it  is  seen  that,  in  the  progress  of  the  pleadings, 
every  question  of  law  involved  in  the  case  might  be  dis- 
cussed and  decided  on  demurrer,  and  put  out  of  the  way. 
This  indeed  does  not  commonly  happen,  for  the  reason 
already  given ;  viz ;  that  each  party  demurs  in  his  oivn 
mind  to  each  pleading  of  his  adversary,  and  in  his  own 
mind  sits  in  judgment  on  the  demurrer,  and  when  in  his 
own  mind  he  overrules  this  '  air-drawn '  demurrer,  he  sees 
the  futility  of  presenting  an  actual  demurrer  to  the  Court, 
and  submits  to  the  necessity  of  pleading,  replying,  &c.  &c, 

Thus  it  will  be  seen  that,  when  the  case  stands  for  final 
judgment  on  the  finding  of  the  issue  by  the  jury,  all  pre- 
liminary questions  are  considered  as  settled,  and,  as  a 
general  rule,  the  judgment  follows  of  course.  In  general 
too  it  will  make  no  difference  whether  these  questions  have 
been  actually  decided  on  demurrer  or  not,  because  when 
4* 


42  THE    PRINCIPLES    OF    PLEADING. 

the  demurrer  is  withdrawn,  the  decision  is  not  entered  as 
the  judgment  of  the  Court,  and  the  record  bears  no  trace 
of  either.  But  on  the  other  hand,  if  the  demurrer  be  not 
withdrawn  it  must  be  disposed  of  by  judgment.  When  a 
demurrer  is  sustained,  the  only  judgment  that  can  be  enter- 
ed is  a  final  judgment  in  favor  of  the  party  demurring : 
When  it  is  overruled  —  then  final  judgment  against  him. 

Hence  it  follows  that  at  Avhatever  stage  of  the  pleadings  a 
demurrer  is  taken,  judgment  upon  it,  if  given,  must  be 
final.  And  necessarily  so.  For  it  is  the  nature  of  a  de- 
murrer to  confess  the  fact  alleged  in  the  pleading  demurred 
to,  and  the  judgment  is  the  conclusion  of  law  from  that 
fact.  So  long  then  as  the  admission  remains  in  the  record, 
the  conclusion  of  law,  being  always  the  same,  the  judg- 
ment must  remain  the  same.  The  only  way  to  evade  it  is 
to  retract  the  admission,  on  leave  given,  and  this  being 
done,  the  judgment  vanishes  with  it,  on  the  logical  princi- 
ple, that,  the  premises  being  not  established,  no  conclusion 
can  be  drawn.  It  is  quite  possible,  that  a  court,  after  hav- 
ing given  judgment,  may  be  so  indulgent  as  to  set  it  aside, 
to  afford  the  one  party  an  opportunity  to  withdraw  his 
demurrer,  or  the  other  to  amend  his  plea.  But  this  is 
never  done  in  England,  and  is  not  the  practice  here.  The 
proper  course,  where  such  indulgence  is  sought,  istoaskit, 
in  the  interval  between  the  decision  of  the  point,  and  the 
entry  of  judgment,  in  pursuance  of  that  decision.  If  it  be 
not  asked  there  is  no  alternative  but  to  embody  the  decis- 
ion in  a  judgment,  which  necessarily  ends  the  case. 

This  minute  explanation,  which,  to  many,  will  seem 
superfluous,  is  made  necessary  by  a  blunder  in  the  legis- 
I.iiion  of  Virginia,  which  never  would  have  been  made,  if 
this  subject  had  been  rightly  understood.  I  shall  speak  of 
that  hen  after.  But  first  it  is  necessary  to  explain  the 
nature  of  another  proceeding. 


THE    PRINCIPLES    OF    PLEADING.  43 


MOTION    IN   ARREST    OF   JUDGMENT. 

I  beg  the  reader  to  look  again  at  the  record  which  has 
been  laid  before  him,  and  placing  himself  beside  the  Court, 
on  the  judgment,  as  on  an  elevated  point,  to  look  back, 
and  trace  the  path  by  which  it  has  been  attained. 

He  then  sees  that  it  is  the  result  or  conclusion  of  law 
from  certain  facts,  which  have  been  tacitly  admitted,  first 
by  one  party,  and  then  by  the  other,  and  he  will  perceive 
that  the  judgment  is  what  it  is,  only  because  such  is  the 
conclusion  of  law  from  the  facts  so  admitted.  Such  being 
its  character,  the  law  recognizes  it  as  its  own,  and  it  will 
be  ratified  and  affirmed  by  any  and  every  tribunal,  which 
truly  represents  the  law,  before  whom  it  may  be  carried. 

But  suppose  the  facts  were  not  such  as  the  law  would 
deduce  such  conclusion  from  ?  Would  the  law  own  the 
judgment?  Would  a  superior  tribunal,  better  acquainted 
with  the  mind  of  the  law,  ratify  it  ?  If  so,  then  the 
authority  of  the  law  would  be  superseded,  and  the  author- 
ity of  individuals  established  in  its  place.  But  this  is 
never  to  be  done,  and  the  superior  Court,  seeing  that  the 
Court  below  had  belied  and  misrepresented  the  law, 
would  reverse  the  judgment. 

But  if  the  judgment  ought  to  be  reversed,  it  ought  not 
to  have  been  given ;  for  the  law,  in  whose  name  and  by 
whose  authority  the  judgment  is  reversed,  is  the  same 
law,  in  whose  name,  and  by  whose  pretended  authority  it 
was  pronounced.  It  follows  then,  that  it  never  can  be 
right  for  the  court  to  pronounce  any  judgment,  which  does 
not  truly  express  the  conclusion  which  the  law  deduces 
from  the  facts  established  in  the  record ;  and  hence  the 
Court,  when  called  upon  to  give  judgment,  should  look 
through  the  whole  record  to  see  what  those  facts  are. 


44  THE    PRINCIPLES    OF    PLEADING. 

To  exemplify  this,  let  it  be  supposed  that  instead  of  the 
replication  in  the  foregoing  record  the  plaintiff  had  replied 
as  follows. 

'  And  the  said  John  Doe  says  that  he  ought  not  to  be 
barred,  &c.  because  he  says  that  at  the  time  when  the  said 
siqiposcd  deed  of  release  ivas  by  him  delivered  to  the 
said  Richard,  there  was  on  the  same  paper  a  condition 
underwritten,  to  the  effect  following,  to  wit,  that,  whereas 
he  the  said  John  Doe  was  indebted  to  a  certain  Jane 
Styles  in  the  sum  of  ten  pounds,  as  witnessed  by  a  certain 
writing  obligatory  of  the  said  John  to  the  said  Jane,  then 
if  the  said  Richard  would,  at  any  time  during  the  year 
1840,  procure  from  the  said  Jane  a  deed  of  release  duly 
executed,  whereby  the  said  John  Doe  should  be  forever 
released  and  acquitted  of  his  said  debt  to  the  said  Jane, 
and  deliver  the  said  release  to  a  certain  John  Denn,  then 
and  in  that  case,  and  not  otherwise,  the  saidioriting  by  him 
then  and  there  delivered  to  the  said  Richard  should  be 
good  and  effectual  to  release  to  the  said  Richard  the 
writing  obligatory  of  the  said  Richard  to  the  said  John 
Doe,  by  him  the  said  John  Doe  first  above  mentioned. 

Now  the  difference  between  the  two  replications,  it  will 
be  seen  is  this  ;  that  in  the  first,  the  release  of  John  Doe 
is  said  to  have  been  delivered  to  a  third  person,  to  wit, 
John  Denn,  whereas  here  it  is  said  to  have  been  delivered 
to  Roe  himself.  Such  delivery  amounting  to  a  waiver  of 
the  condition  annexed,  it  would  follow  that  the  release  was 
good  and  effectual  instanter,  and  that  there  was  no  need 
that  the  defendant  should  comply  with  the  condition,  or 
say,  by  way  of  rejoinder,  that  he  had  done  so.  lie  ought 
at  once  to  have  demurred  to  the  replication,  demanding 
judgment  whether  the  condition  annexed  could  impair  the 
effect  of  the  release  delivered  by  the  plaintiff  himself  to 
the  defendant. 


THE    PRINCIPLES    OP    PLEADING.  45 

But  suppose  the  defendant's  counsel  to  have  overlooked 
this  distinction,  and  to  have  rejoined  exactly  as  in  the 
other  case,  the  pleadings  going  on  to  a  demurrer  in  the 
very  words  contained  in  the  above  sketch.  The  question 
will  be,  '  what  judgment  shall  the  Court  give  on  that 
demurrer  ? ' 

Looking  only  to  the  two  last  pleadings  the  judgment 
should  be  the  same.  But  the  judgment  being  the  conclu- 
sion of  law  from  all  the  facts  in  the  case,  the  Court,  to 
collect  these  must  look  through  the  whole  record.  This, 
let  it  be  remembered,  the  Court  has  never  seen  before. 
But  on  examining  it  now,  it  appears  that,  although  the 
plaintiff  had  appended  the  condition  to  the  release,  he  had 
waived  it  by  delivering  the  instrument  to  the  defendant 
himself,  so  that  the  release  was  absolute  and  unconditional. 
Shall  the  Court  then  give  judgment  for  a  debt  that  has 
been  released  ?  By  no  means.  Shall  it  not  rather  give 
the  same  judgment  that  would  have  been  given,  if  the 
defendant  instead  of  rejoining,  and  then  demurring  to  the 
surrejoinder,  had  demurred  at  once  to  the  replication  ? 
Most  clearly  so.  For  the  essential  fact  (to  wit  the 
completeness  of  the  release)  is  that  from  which  the  conclu- 
sion of  law  is  to  be  deduced,  no  matter  at  what  stage  of 
the  pleading,  after  the  replication,  the  demurrer  might  be 
taken.  The  fact  that  the  defendant's  attempt  to  do  that 
which  he  erroneously  supposed  to  be  necessary  to  give 
effect  to  the  release,  had  proved  abortive,  cannot  prejudice 
him,  or  impair  its  effect,  now  that  it  appears  that  he  had 
no  need  to  do  any  thing.  The  attempt  was  a  work  of 
supererogation.  The  rejoinder  setting  it  forth  was  a  work 
of  supererogation.  The  transaction  was  already  at  an  end. 
The  bond  was  discharged  and  extinguished,  and  no  judg- 
ment in  favor  of  the  plaintiff  can  be  given  on  it. 

When  the  reader  finds  it  laid  down  in  books  on  plead- 
ing, that  in  all  cases  of  demurrer  the  Court  will  go  back  to 


46  THE    PRINCIPLES    OF    PLEADING. 

the  first  fault,  it  is  to  be  hoped  that  he  will  find,  in  what 
has  been  here  said,  both  the  meaning  and  the  reason  of 
the  proposition. 

Let  us  again  vary  the  case,  and  suppose  that  the 
defendant,  on  receiving  the  surrejoinder,  had  been  fully 
aware  that  if  indeed  Jane  Styles  was  married  at  the  date 
of  the  paper  executed  by  her,  it  could  be  of  no  use  to 
him.  His  only  hope,  under  this  conviction  would  be,  that 
perhaps  she  was  not  married,  or  that  the  plaintiff  might  be 
unable  to  prove  her  marriage.  In  this  hope  he  answers  by 
way  of  rebutter  as  follows. 

'  And  the  said  Richard  Eoe,  says  that  by  any  thing  by 
the  said  John  Doe  in  his  plea  last  aforesaid  alleged,  he 
ought  not  to  have  and  maintain  his  action  aforesaid,  because 
he  says  that  on  the  said  first  clay  of  July  1840,  the  said 
Jane  Styles  was  not  a  married  woman,  in  manner  and 
form  as  by  the  said  John  in  pleading  is  alleged ;  and  of 
this  he  puts  himself  upon  the  Country'  —  to  which  is 
added  '  and  the  said  John  Doe  doth  the  like.' 

The  record  then  goes  on  thus. 

'  And  now  at  this  day '  (some  future  day  after  the  case 
has  been  set  on  the  issue  docket)  'come  the  parties  afore- 
said by  their  attorneys,  and  thereupon  come  also  a  Jury  to 
wit,  A.  B.  C.  &c.  twelve  good  and  lawful  men,  who,  being 
duly  elected  tried  and  sworn  the  truth  to  speak  on  the 
issue  joined  between  the  parties,  on  their  oaths  do  say, 
thill  on  the  first  day  of  July  1840,  the  said  Jane  Styles 
was  a  married  woman  in  manner  and  form  as  the  said  John 
Doe  in  pleading  has  alleged.' 

We  are  now  again  in  possession  of  all  the  facts  of  the 
case  ;  it  stands  ready  for  judgment,  and  the  question  is, 
'  what  judgment  shall  be  given  ?'  It  is  to  be  the  conclu- 
sion of  law  from  the  facts  established  on  t lie  record.  Now 
arc  not  the  facts  the  same  as  before?  Is  not  the  record 
precisely  the  same,  except  that  the  fact  of  Jane  Stylcs's 


THE    PRINCIPLES    OF    PLEADING.  47 

marriage  was  admitted  in  the  first  instance,  while  in  this 
it  is  established  by  the  verdict  of  a  jury  ?  Its  value  as  a 
premise  to  the  conclusion  of  law  must  be  the  same  in 
both  cases.  Its  effect  as  an  element  in  the  judgment  of  the 
Court  must  be  the  same.  It  follows  therefore  that  as  the 
record  stands  in  the  sketch  at  first  given,  judgment  must 
be  as  before  for  the  plaintiff.  But  the  change  above 
supposed  being  made  in  the  replication,  the  plaintiff  cannot 
have  judgment  for  a  debt  fully  released. 

But  shall  judgment  be  given  for  the  defendant?  Per- 
haps it  might  not  be  right.  Had  the  defendant  demurred 
to  the  plaintiff's  replication,  he  might  have  asked  leave  to 
amend.  He  might  have  corrected  what  may  have  been  a 
mere  slip  of  the  pen.  He  might  have  some  other  satis- 
factory answer  to  the  plea.  It  may  be  suspected  that  the 
defendant  was  aware  of  the  fault  in  the  replication,  and 
forbearing  to  avail  himself  at  once  of  an  advantage  which 
he  knew  he  could  not  finally  lose,  had  artfully  drawn  on 
the  plaintiff  into  his  present  difficulty.  Instead  therefore 
of  giving  a  judgment  acquitting  the  defendant  of  the  debt, 
the  court  may  evade  the  necessity  of  deciding  the  case,  by 
'arresting  the  judgment,'  or,  in  other  words,  forbear  to 
give  judgment  for  the  plaintiff,  without  deciding  the  case 
finally  in  favor  of  the  defendant.  Perhaps  it  has  power 
to  set  aside  the  verdict,  and  all  the  pleadings  back  to  the 
plea,  and  give  the  plaintiff  leave  to  file  a  new  replication. 
This  would  certainly  be  the  best  way  to  dispose  of  the 
case,  unless  indeed  the  plaintiff  should  find  that  he  could 
not  truly  make  his  replication  any  better.  If  sensible  of 
this,  he  ought  to  give  up  the  cause,  and  suffer  final  judg- 
ment to  be  entered  against  him.  Thus  if  the  release  had 
in  fact  been  delivered  to  John  Denn,  and  it  was  by  a  mere 
slip  of  the  pen  that  he  had  said  it  was  delivered  to  the 
defendant,  he  would  gladly  avail  himself  of  the  indulgence, 
reply  in  the  terms  of  the  replication  as  it  stands  in  the 


48  THE    PRINCIPLES    OF    PLEADING. 

general  sketch,  and  the  record  would  thenceforward  take 
the  same  form,  and  have  the  same  result  as  appears  there. 
But  if  the  plaintiff  had  indeed  delivered  the  release 
to  Roe  himself,  he  would  see  that  the  decision  of  the 
Court  on  the  motion  in  arrest  was  a  decision  of  the  matter 
in  controversy,  and  ought  to  be  followed  by  final  judgment, 
to  which  he  ought  therefore  to  submit. 

Thus  we  see  that  the  judgment  being,  in  all  cases  the 
conclusion  which  the  law  deduces  from  the  facts  in  the 
record,  the  same  judgment  must  always  be  given  upon  the 
same  facts  no  matter  how  ascertained.  The  manner  in 
which  they  have  been  ascertained  may  indeed  make  this 
difference.  When  both  parties  have  acted  understand- 
ing^, when  there  has  been  no  mistake  and  no  surpz-ise, 
and  nothing  of  the  sort  is  suggested,  the  Court  proceeds 
at  once  to  peremptory  judgment.  But  where  a  blunder 
has  been  committed,  and  the  party  who  is  in  danger  of 
suffering  by  it  will  make  a  proper  suggestion,  that,  if  he 
could  have  an  opportunity  of  correcting  it,  the  facts  of  his 
case  would  bear  him  out  in  so  doing,  means  are  contrived 
to  give  him  such  opportunity.  In  case  of  demurrer,  this 
is  effected  by  allowing  him  who  had  committed  the  first 
fault,  to  withdraw  such  faulty  pleading,  in  consequence  of 
which  that  and  the  pleadings  growing  out  of  it,  including 
the  demurrer,  vanish  from  the  record. 

The  case  of  a  verdict  is  managed  somewhat  differently. 
The  Court  sets  it  aside,  and  the  pleadings,  back  to  the 
first  fault  inclusive  are  also  set  aside  ;  but  they  all  remain 
on  the  record.  The  reason  is,  because  the  Court  has  not 
the.  same  power  over  the  verdict,  which  lias  established 
the  fact,  as  over  the  demurrer,  which  was  the;  voluntary, 
and  perhaps  mistaken,  admission  of  the  party.  The 
power  of  the  Court  to  permit  him  to  retract  such  admis- 
sion is  unlimited.  Not  so  with  the  verdict.  The  Court 
may  have  erred  in   setting  it  aside,  and,  if  so,  any  judg- 


THE    TKINCIPLES    OF    PLEADING.  49 

ment  it  may  afterwards  give  in  favor  of  the  other  party- 
will  be  vitiated  by  that  error,  and  ought  to  be  reversed. 
That  the  appellate  court  may  have  power  to  do  this,  the 
history  of  the  proceeding,  consisting  of  the  original  plead- 
ings and  verdict,  must  remain  on  the  record. 

I  have  dwelt  so  long  on  this  point,  because  a  clear 
apprehension  of  it  is  necessary  to  the  right  understanding 
of  many  important  matters.  It  is  indispensable  to  sweep 
away  every  thing  which  may  obscure  the  great  and  funda- 
mental principle  of  all  proceedings  at  Common  law.  This 
principle  may  be  stated  thus.  'The  judgment  should 
express  the  conclusion  which  the  Law  deduces  from  the 
facts  established  in  the  record  ;  and  every  judgment  which 
expresses  any  other  conclusion  must  be  erroneous,  and 
ought  to  be  reversed.'  It  is  by  losing  sight  of  this  princi- 
ple that  our  Legislators  have  thrown  the  whole  jurispru- 
dence of  the  country  into  confusion.  As  matters  are  now 
conducted,  our  records  answer  imperfectly,  or  not  at  all, 
the  purposes  originally  aimed  at.  Injustice  is  often 
blindly  perpetrated.  The  facts  established  in  the  case 
are  not  duly  recorded  in  jieiyctuam  rei  memoriam,  so  as 
to  prevent  future  litigation  ;  and  no  inference  of  law  can 
be  drawn  from  the  record. 

I  proceed  to  explain  the  causes  which  led  to  this  course 
of  legislation,  and  to  point  out  the  particular  enactments 
by  which  the  mischief  has  been  done. 

Before  doing  this,  I  beg  leave  to  offer  two  general 
remarks. 

1.  On  reviewing  what  has  been  written,  the  reader  can 
hardly  fail  to  perceive  the  exact  adaptation  of  the  system 
of  pleading  to  the  purposes  of  justice.  Yet  his  experience 
of  the  frequent  injustice  which  is  perpetrated  in  the  name 
of  the  law,  may  cause  a  lingering  doubt  on  this  point,  and 
that  doubt  I  shall  endeavor  to  dispel. 

The  most  natural  division  of  the  law  which  regulates 
5 


50  THE    PRINCIPLES    OF    PLEADING. 

affairs  between  man  and  man  is  twofold.  It  is  made  up 
of  1.  the  law  of  Right,  and  2.  the  law  of  Remedy.  It 
is  the  law  of  Right  which  ascertains  the  ownership  of 
property ;  which  establishes  the  obligation  of  contracts  ; 
which  declares  that  he  who  is  injured  in  reputation, 
person,  or  property,  shall  have  reparation  from  the 
aggressor,  and  which,  at  the  same  time,  declares  that 
certain  conveyances  shall  be  inoperative,  that  certain  con- 
tracts shall  not  be  binding,  and  that  certain  circumstances 
shall  justify  acts  which  are  hurtful  to  others.  The  law  of 
Remedy  can  do  no  more  than  give  effect  to  the  law  of 
Right,  enforcing  only  such  demands  as  that  sanctions,  and 
admitting  only  such  justifications  of  imputed  wrong  as  that 
recognizes  as  valid.  The  boundary  between  the  two  is 
not  carefully  defined ;  and  in  general  it  need  not  be.  But 
in  executing  my  present  task,  which  is  to  vindicate  the 
principles  of  pleading  as  established  by  Common  Law,  I 
am  anxious  to  prevent  the  law  of  Remedy  from  being 
charged  with  the  fault,  (if  such  there  be)  of  the  law  of 
Right.^v  This  is  the  more  necessary  because  the  law,  in 
defining  right,  speaks  often  in  terms  appropriate  to  the 
law  of  Remedy.  But  a  moment's  reflection  will  convince 
the  reader  that  when  the  law  ordains  of  certain  contracts, 
that  no  action  shall  be  maintained  uj)on  them  it  means  in 
substance  the  same  thing,  as,  when,  in  speaking  of  other 
contracts,  it  declares,  that  they  shall  be  void.  Now  those 
who  are  dissatisfied  with  enactments  in  either  form,  are 
apt  to  charge  the  fault  on  the  law  of  Remedy.  The 
gambler,  who  complains  that  his  victim  has  .availed  himself 
of  the  statute  declaring  all  securities  for  gaining  debts 
void,  abuses  him  as  a  scoundrel,  who  had  plead  the  act 
against  gaming.  The  usurer's  charge  against  the  borrower, 
who  breaks  away  from  his  fangs,  and  the  fair  creditor's 
complaint  of  the  wretch,  who  avails  himself  of  the  Statute 
of  limitations,  are  couched  in  the  same  terms,    'i/e  plead 


THE    PRINCIPLES    OF    PLEADING.  51 

the  act.'  And  so  pleading  bears  all  the  blame,  though  it 
is  plain  that  the  law  of  Remedy,  and  especially  the  system 
and  principles  of  pleading,  remain  just  the  same  as  before 
these  statutes  were  passed. 

Now  it  is  not  to  be  denied,  that  there  are  many  things 
in  the  law  of  Right,  quite  unpalateable  to  that  very 
numerous  class,  of  which  the  poet  sings  when  he  says, 

'  No  Thief  e'er  felt  the  halter  draw, 
With  good  opinion  of  the  Law.' 

Others  there  are  which  are  displeasing  to  many  good  and 
honest  men  ;  and  it  is  to  be  feared,  that  there  is  no  code, 
in  which  there  are  not  some  things,  with  which  all  good 
and  honest  men  ought  to  be  dissatisfied.  Now,  as  it  is 
only  through  the  Courts  that  the  law  manifests  its  results, 
all  these  different  discontents  vent  themselves  against 
pleading,  which  men  concur  to  condemn,  while  per- 
haps their  grounds  of  censure  are  different  and  even 
opposite. 

Such  complaints,  rightly  understood,  are  the  highest 
praise  of  the  system  of  pleading.  If  the  law  of  Right 
were  exactly  what  all  men  would  have  it  to  be,  all  would 
see  that  the  perfection  of  pleading  would  consist  in  its 
aptitude  to  give  effect  to  the  law  of  Right.  It  is  precisely 
this  same  perfection,  for  which  it  is  condemned,  when  its 
office  is  to  give  effect  to  a  law  of  Right,  with  which  men 
are  dissatisfied.  Yet  this  it  must  do,  or  the  reign  of  Law 
is  at  an  end.  The  true  remedy  is  to  make  the  law  of 
Right  what  it  ought  to  be.  But  to  do  this  it  is  necessary 
to  look  below  the  surface,  which,  in  such  a  matter,  the 
multitude  can  never  do.  But  the  multitude,  with  us,  must 
do  its  pleasure,  not  only  in  matters  which  it  understands, 
but  in  all  concerning  which  it  has  any  feeling,  though  it 
may  know  nothing  about  them ;  because  they  who  rule,  do 
so  by  flattering  the  ignorance,  cultivating  the  prejudices, 


52  THE    PRINCIPLES    OF    PLEADING. 

and  indulging  the  passions  of  the  multitude.  Hence 
whatever  goes  amiss  in  our  jurisprudence  is  to  be  corrected 
by  an  assault  on  the  system  of  pleading,  in  which  our 
legislatures  act  about  as  wisely,  as  the  old  maid  who 
would  obliterate  her  wrinkles,  and  restore  her  bloom,  by 
breaking  her  glass. 

2.  Whatever  legal  controversies  may  arise  between  any 
two  honest  and  fair  men,  must  originate  in  an  honest  differ- 
ence of  opinion  on  some  question  of  law  or  fact,  and  each 
must  earnestly  desire  the  settlement  of  such  question.  They 
themselves  may  not  certainly  know  what  the  point  of  differ- 
ence is.  It  may  be  a  point  of  law  :  —  it  may  be  a  question 
of  fact.  Each  may  only  know  his  own  mind  —  not  that  of  the 
other.  A  common  friend,  called  on  to  arbitrate  between 
them,  would  make  it  his  business,  in  the  first  place  to  find 
out  for  himself,  and  to  let  them  too  see  distinctly,  the  true 
point  of  difference  between  them.  The  law,  when  appealed 
to,  should  try  to  do  the  same,  and  this  is  precisely  what  the 
law  of  pleading  accomplishes  with  unerring  certainty. 
What  more  would  the  parties  desire  to  prepare  the  case 
for  a  decision  ?  If  the  difference  should  be  upon  a  point 
of  law,  an  honest  and  enlightened  judge  will  decide  it. 
If  on  a  question  of  fact,  truthful  witnesses  and  an  impar- 
tial jury  are  all  that  is  wanting.  If  Right  and  Justice 
are  not  done,  it  must  be  for  one  of  five  causes. 

1.  The  law  of  Right  (or  that  which  passes  for  it) 
must  be  the  law  of  Wrong  :  or 

2.  An  incompetent  or  dishonest  Judge  must  interpret 
it  falsely  :  or 

3.  There  must  be  a  lack  of  Testimony  which  no  law 
can  supply :  or 

4.  The  witnesses  must  testify  falsely  :  or 

5.  The  Jury  must  take  upon  themselves  to  find  a 
verdict  without  evidence  or  contrary  either  to  law  or 
evidence. 


THE    PRINCIPLES    OF    PLEADING.  53 

All  these  are  sources  of  injustice,  which  no  change  in 
the  law  of  Remedy  can  remove ;  and  a  law  of  Remedy 
which  guards  against  every  other  is  perfect.  I  take  it 
upon  me  to  affirm,  that  no  two  honest  men,  satisfied  with 
the  existing  law  of  Right,  and  having  full  confidence  in 
the  Judge  the  Witnesses  and  the  Jury,  would  wish  to 
change  one  iota  of  the  system  of  pleading,  as  I  have  ex- 
plained it.  They  would  feel  sure  that  Justice  and  Right 
ivould  be  done,  and  when  the  case  had  been  decided,  they 
(even  the  losing  party)  would  feel  sure  that  Justice  and 
Right  had  been  done. 

But  all  are  not  honest,  and  the  law,  in  a  free  country, 
should  be  made  to  suit  the  majority.  Is  this  so  ?  I  do 
not  think  that  the  most  strenuous  advocate  of  the  divine  right 
of  majorities  will  contend,  that,  if  a  majority  were  dishon- 
est, there  should  therefore  be  no  law  against  larceny.* 
As  little  should  it  be  contended  that  a  system  of  juris- 
prudence, calculated  to  settle  satisfactorily  all  the  honest 
differences  that  might  arise  between  honest  men,  should 
be  rejected,  because  a  majority  might  prefer  a  system  bet^ 
ter  suited  to  the  purposes  of  knaves.  If  there  be  any 
who  would  assail  the  system  of  pleading  on  such  ground, 
I  can  only  say  that  they  flatter  the  power  of  the  majority, 
and  at  the  same  time  offer  it  a  most  unmerited  insult, 
For  my  own  part  I  am  persuaded,  that  there  is  no  civil- 
ized community,  a  majority  of  which  is  not  essentially 
honest,  desiring  nothing  so  much  as  a  system  of  jurispru- 
dence, by  which  Right  and  Justice  between  man  and  man 
may  be  done  with  unerring  certainty.  There  is  no  comr 
munity  in  which  public  indignation  would  not  scout  the 
objection,  that  the  laws  might  do  well  enough  for  honest 
men,  but  were  not  suited  to  knaves, 

It  is  enough  therefore  for  my  purpose  if  I  can  vindicate 

*  '  I  pray  thee,  sweet  wag-,  let  there  be  no  gallows  left  standing  in 
England  when  thou  art  King.' 

5* 


54  THE    PRINCIPLES    OF    PLEADING. 

the  system  of  pleading  to  the  satisfaction  of  honest  men. 
To  succeed  in  this,  it  is  not  enough  to  show  by  reasoning 
a  priori  that  it  is  favorable  io  the  triumph  of  Justice  and 
Right.  Men  will  insist  on  judging  the  tree  by  the  fruit ; 
and  when  they  see  that  so  much  injustice  and  wrong  are 
perpetrated,  it  is  necessary  to  show  that  the  fault  is  not  in 
the  system  of  pleading.  This  can  only  be  done  by  showing 
where  the  fault  is,  and  to  what  causes  it  is  to  be  attribu- 
ted. The  causes  to  which  I  ascribe  it  are  those  enumer- 
ated above,  and  one  more,  which  is,  in  part,  and  indirectly, 
the  cause  of  some  of  the  others,  and  directly  the  most  pre- 
vailing cause  of  the  injustice  perpetrated  in  the  name  of 
law. 

That  cause  is  this.  The  system  of  pleading  is  not  car' 
riecl  into  practice.  Hence  confusion  in  records  which  fail 
to  show  the  true  point  in  controversy,  and  to  prepare  the 
case  for  a  proper  investigation.  This  is  the  direct  effect. 
Indirectly  it  works  farther  mischief  by  rendering  it  some- 
times impossible  for  any  Judge  to  know  with  certainty  what 
the  law  is  ;  by  discouraging  lawyers  and  Judges  in  the 
pursuit  of  legal  knowledge,  and  by  corrupting  the  Jury, 
with  false  ideas  of  their  power  and  duty,  and  the  nature  of 
the  oath,  under  which  they  act. 

But  as  the  reader  may  be  apt  to  suspect,  that  pleading 
could  hardly  have  fallen  into  such  desuetude,  without  some 
demerit  of  its  own,  it  may  be  proper  to  explain  how  this 
has  come  to  pass. 

Before  the  Revolution  there  were,  but  two  Courts  in 
Virginia;  the  County  Court  and  the  General  Court. 
The  County  Court  was  then  what  it  now  is,  composed  of 
men,  of  whom  not  one  in  fifty  pretended  to  any  knowledge 
of  the  law.  Their  only  means  of  qualifying  themselves 
for  a  correct  decision  of  any  point,  was  by  attending  care- 
fully to  the  arguments  of  counsel,  and  the  authorities 
adduced  at  the.  bar.     It  was  to  little  purpose  to  lay  before 


THE    PRINCIPLES    OF    PLEADING.  55 

such  men  authorities  not  exactly  in  point,  and  every  law- 
yer knows  how  rare  these  are.  The  chief  weapon  there- 
fore of  the  advocate  conscious  of  right,  was  such  reasoning 
as  his  judges  might  be  expected  to  comprehend.  The 
reliance  of  his  adversary  was  on  mystification.  The  plain 
and  simple  minded  men  to  whom  these  were  addressed 
soon  learned  to  distinguish  between  the  two,  and  to  distrust 
every  argument  which  could  not  be  understood  without  an 
effort.  Hence  the  advocate  took  care  not  to  discredit  his 
case,  by  dwelling  on  abstruse  points  and  technicalities. 
These  last  were  soon  abjured  by  all  parties,  and  the  study 
of  them  was  consequently  neglected,  by  those  who  practiced 
only  in  the  County  Courts. 

But  an  appeal  lay  from  these  to  the  General  Court. 
True.  But  the  composition  of  that  Court  differed  only  in 
degree  from  that  of  the  County  Courts.  The  members  of 
the  Common  Council  were  ex  officio  judges  of  the  General 
Court.  No  legal  attainments  were  required  for  a  seat  at 
the  Council  board,  and  hence  it  happened,  that,  while  the 
principal  gentlemen  of  the  County  constituted  the  County 
Court,  the  General  Court  was  composed  of  the  principal 
gentlemen  of  the  Province.  In  both  cases,  the  selection 
was  made  with  little  or  no  regard  to  the  profession  of  the 
officer.  In  the  old  church  at  Williamsburg  there  is  a 
tablet  erected  to  the  memory  of  a  gentleman  of  whom  it 
testifies  that  he  was  an  eminently  successful  physician,  and 
that  he  died  in  the  prime  of  life,  sitting  as  a  Judge  on  the 
bench  of  the  General  Court  in  the  Capitol  of  the  Colony. 
It  also  testifies  to  his  merit  as  a  Judge,  and  perhaps  not 
without  reason,  for  his  associates  were,  for  the  most  part, 
men  sent  from  England  with  political  views,  and  the  most 
loyal  of  the  great  landed  proprietors,  who  lived  on  their 
estates,  and  were  of  no  profession  at  all. 

All  that  has  been   said  therefore  of  the  effect  of  the 
constitution  of  the  County  Courts  upon  the  bar,  will  apply, 


56  the'  principles  of  pleading. 

though  with  less  force,  to  the  General  Court  itself.  The 
reader  may  judge  for  himself  what  that  effect  would  be 
at  the  end  of  a  century  and  a  half,  during  which  five 
generations  of  lawyers  passed  over  the  stage,  each 
pledged,  by  its  very  respect  for  its  predecessors,  to  think 
favorably  of  the  loose  practice  and  the  numberless 
blunders  consecrated  by  their  example. 

Meantime  the  people  were  not  wholly  insensible  of  the 
want  of  a  Court  of  somewhat  different  character  ;  and  to 
supply  that  want  was  one  of  the  objects,  to  whieh  the 
framers  of  the  new  Constitution  directed  their  attention. 
To  do  this,  they  established  three  Courts,  for  which  sixteen 
Judges  learned  in  the  law  were  wanting.  The  difficulty 
was  to  find  the  men  fit  to  fill  these  important  posts. 
Integrity  and  talent  were  abundant,  but  a  learned  lawyer 
was  indeed  a  rata  avis.  What  motive  had  the  lawyers 
had  to  acquire  learning  ?  With  the  exception  of  some 
few  who  had  studied  the  profession  abroad,  and  had  not 
been  long  enough  in  Virginia  to  lose  the  memory  of  what 
they  knew,  in  the  loose  practice  prevailing  here,  there 
was  but  one  man  in  the  State  who  had  any  claims  to  the 
character.  I  speak  of  the  venerable  Chancellor  Wythe,  a 
man  who  differed  from  his  contemporaries  in  this,  because 
in  his  ordinary  motives  and  modes  of  action  he  differed 
altogether  from  other  men.  Without  ambition,  without 
avarice,  taking  no  pleasure  in  society,  he  was  by  nature 
and  habit  addicted  to  solitude,  and  his  active  mind  found 
its  only  enjoyment  in  profound  research.  The  languages 
of  antiquity,  the  exact  sciences,  and  the  law,  were  the  three 
studies  which  alone  could  be  pursued  with  a  reasonable 
hope  of  ariving  at  that  certainty,  which  his  upright  and 
truth-loving  mind  contemplated  as  the  only  object  worthy 
of  his  labors.  To  these  he  devoted  himself,  and  he  became 
a  profound  lawyer  for  the  Same  reason  that  he  was  a  pro- 
found Creek  scholar,  astronomer  and  mathematician. 


THE    PRINCIPLES    OF    PLEADING.  57 

Of  the  composition  of  the  other  courts  I  shall  not  speak 
in  detail.  The  only  person  I  shall  mention  is  one  of 
whom  no  man  ever  spoke  invidiously,  and  I  venture  to 
name  him,  because  of  him  I  can  say  all  that  is  necessary 
to  my  purpose,  without  essentially  detracting  from  the 
high  praise  which  all  men  delight  to  bestow  on  him.  Few 
men  were  ever  more  gifted  than  Mr.  Pendleton,  the  first 
President  of  the  Court  of  Appeals,  and  his  natural  powers 
of  mind  were  faithfully  and  successfully  devoted  to  the 
study  of  so  much  of  the  law  as  the  established  usages  of 
the  country  permitted  to  prevail.  His  justice  and  good 
sense  disinclined  him  to  be  astute  in  raking  up  legal 
maxims,  which,  if  not  obsolete,  were,  for  the  most  part, 
forgotten,  and  were  certainly  not  in  the  contemplation  of 
those  whose  rights  he  was  called  to  adjust.  In  the  like 
spirit  he  saw,  that  it  would  be  foolish  and  wicked  to 
enforce,  on  a  writ  of  error,  the  rules  of  proceeding,  which, 
in  the  conduct  of  a  cause,  the  parties  had,  at  least  tacitly, 
agreed  to  dispense  with.  Hence  he  is  said  to  have 
declared,  that  he  always  made  it  his  study  to  ascertain  the 
very  right  and  justice  of  every  case,  that  came  before 
him,  and  then  to  hunt  up  law  to  support  it.  In  the  actual 
condition  of  the  country,  this  was  perhaps  the  best  that 
could  be  done,  and  this  he  did,  with  an  ability  and  success 
which  deserved  and  commanded  universal  admiration.  It 
may  readily  be  supposed,  that  technicalities  of  all  sorts 
found  little  favor  in  his  eyes,  and  that  his  course  of 
adjudication  afforded  little  encouragement  to  the  study  of 
such  things.  When  a  case  had  been  fairly  tried,  he  was 
not  a  man  to  reverse  the  proceedings  because  the  parties 
had  arrived  ])er  saltum  at  the  issue,  or  because  the  evi- 
dence, which  had  decided  the  case  according  to  its  merits, 
was  not  appropriate  to  the  issue  actually  joined. 

Reasoning  and  acting  thus,  and  rightly  too,  his  mind 
instinctively  kept  itself  untrammeled  by  that  sort  of  knowl- 


58  THE    PRINCIPLES    OP    PLEADING. 

edge,  which  might  too  often  furnish  law  to  defeat  right  and 
justice.  Hence  we  find  him  on  one  occasion  refusing  to 
be  restrained  by  the  letter  of  a  certain  legal  maxim.  To 
justify  himself  in  this,  he  said  that  some  of  the  most 
familiar  and  best  known  of  such  maxims  were  habitually 
disregarded  even  by  men  of  technicality  themselves.  As 
an  instance  he  mentioned,  that  it  is  said,  '  that  a  sealed 
instrument  can  only  be  discharged  by  writing  under  seal,' 
'  and  yet,'  said  he,  '  bonds  are  universally  considered  as 
being  discharged  by  receipts  not  under  seal.'  This 
remark  plainly  shows  that  he  had  not  adverted  to  the 
distinction  between  the  release,  which  frees  the  debtor 
from  the  obligation  to  pay,  and  the  receipt,  which  proves 
that  he  has  actually  paid.  The  one  discharges  an  existing 
duty,  which  can  only  be  done  under  seal.  The  other 
proves  that  it  has  been  already  performed,  which  may  be 
done  by  any  evidence  whatever.  A  man  not  familiar 
with  this  distinction  would  not  hesitate  to  decide  that  a 
release  might  be  given  in  evidence  on  a  plea  of  payment, 
or  a  receipt  on  a  plea  of  release.  If  justice  required  that 
a  judgment  should  not  be  reversed,  because  this  had  been 
permitted,  Judge  Pendleton  would  have  been  sorry  to 
know  the  law,  which  would  have  made  it  his  duty  to 
reverse  it.  Like  Lord  Nelson  at  Copenhagen,  he  was 
glad  to  be  blind  of  one  eye.  But  give  him  a  case  in  which 
he  was  not  afraid  to  push  his  investigations  too  far ;  a 
case  (and  there  are  many  such)  in  which  Justice  stands 
by  indifferent,  and  equally  content  with  whatever  law  may 
decide,  and  nothing  could  exceed  the  profundity  of  his 
researches,  or  the  ability  with  which  he  collected  and 
applied  his  authorities. 

Judge  Pendleton  has  been  called  the  Mansfield  of 
Virginia,  and  justly  too.  Both  possessed  the  same  felicitous 
facundity,  the  same  ingenuity  and  address,  and  both  were 
actuated    by  the   same  general   purpose  of   banding  the 


THE    PRINCIPLES    OP    PLEADING.  59 

rigid  rules  of  law  to  considerations  of  more  moment. 
But  Lord  Mansfield  had  too  much  care  of  his  own  reputa- 
tion to  be  willing  to  appear  ignorant  of  any  thing  a 
lawyer  ought  to  know.  Hence  he  was  under  the 
necessity  of  devising  arguments  to  elude  the  weight  of 
authorities  opposed  to  him.  Judge  Pendleton  accom- 
plished the  same  object  by  winking ;  for  he  well  knew,  that, 
wink  as  hard  as  he  might,  he  would  still  see  more,  With 
half  an  eye,  than  any  of  those  about  him.  But  in  one  thing 
the  resemblance  was  exact.  What  Lord  Mansfield  was  to 
the  Court  of  King's  Bench,  the  same  was  Mr.  Pendleton 
to  the  Court  of  Appeals  and  for  the  same  reason.  He 
was  the  mind  and  the  voice  of  the  Court.  If  he  went 
wrong  they  all  went  wrong  together,  for  without  him  they 
could  not  go  at  all. 

It  is  quite  probable,  that,  had  Mr.  Pendleton  presided 
in  a  Court  of  original  jurisdiction,  he  might  have  pursued 
an  opposite  course,  making  it  his  study  to  correct  the 
mischiefs  which  as  an  appellate  Judge  he  could  only  miti- 
gate; to  remove  the  evil,  instead  of  devising  palliations 
for  the  consequences.  He,  and  he  alone,  was  equal  to 
either  task.  His  position  decided  his  choice,  and  led  to  a 
course  of  adjudication,  by  which  what  before  was  license 
seemed  to  become  law.  All  sorts  of  blunders  being  par- 
doned, it  became  impossible  to  blunder.  The  study  of 
pleading,  as  a  science,  was  made  as  superfluous  as  that  of 
the  anatomy  of  some  pre- Adamite  animal  known  only  by 
his  fossil  remains  to  have  existed,  and  men  were  derided 
as  pedants  or  fools  for  knowing  or  affecting  to  know  any 
thing  about  it. 

Still  Mr.  Pendleton  himself  could  not  make  root  and 
branch  work  of  it.  Jury  trial  remains  consecrated  alike 
by  reason  and  prejudice.  The  law  and  the  fact  must 
therefore  be  kept  separate ;  and,  that  the  Judge  may  not 
ride  down  the  power  of  the  Jury  to  decide  the  fact,  the 


60  THE    PRINCIPLES    OF    PLEADING. 

record  must  shoiv  the  fact;  and  the  judgment  must  be  a 
just  and  true  expression  of  the  conclusion  deduced  there- 
from by  the  laio.  The  necessity  for  this  may  not  be 
obvious  to  all,  but  he  who  will  reflect  will  see,  that  Jury 
trial,  which  we  consider  as  so  sacred,  cannot  be  preserved 
without  it.  The  maxim  '  ad  gucestiones  facti  respondeant 
Juratores '  is  not  more  indispensable  than  its  correlative 
*  ad  gucestiones  juris  respondeant  Judices.'  It  is  of  the 
nature  of  all  anarchy  to  end  in  despotism  ;  and  if  the  pow- 
ers of  the  two  tribunals  become  blended,  though  for  a  time, 
the  Jury  may  have  it  all  their  own  way,  yet,  in  the  end, 
the  Jury  will  go  to  the  wall.  Men  will  not  long  endure  that 
ignorance  and  prejudice  shall  trample  on  law,  and  that 
rights  shall  be  held  by  no  fixed  rule  ;  and  it  will  be  seen, 
by  experiment,  that,  though  the  Jury  is  the  best  tribunal 
to  decide  on  questions  of  fact,  it  is  the  worst  that  can  be  de- 
vised, in  civil  cases,  to  determine  questions  of  law.  That 
which  is  law  for  one  man  should  be  law  for  another,  which 
can  never  be,  if  one  Jury  may  decide  in  the  case  of  A. 
and  yet  leave  another  Jury  free  to  decide  the  very  reverse 
in  case  of  B.  The  invaluable  maxim,  stare  decisis,  will  be 
altogether  lost  to  our  jurisprudence,  and  men  will  not 
know  by  what  tenure  they  hold  their  rights,  nor  under 
what  code  of  laws  they  live.  When  things  are  at  this 
pass,  it  will  be  found  less  hazardous  to  leave  all  to  the 
Judge,  than  to  leave  all  to  the  Jury.  Many  will  incline  to 
do  this,  and  the  only  way  to  escape  from  Scylla,  without 
plunging  into  Charybdis,  will  be  to  return  to  the  safe  mid 
channel,  where  law  is  separated  from  fact,  and  to  the 
system  of  pleading,  by  which  this  separation  is  so  perfectly 
accomplished.  We  continually  see  symptoms  of  this 
change;  in  the  popular  mind.  Every  day  adds  to  tbe 
number  of  those  suitors,  who  are  led  by  sad  experience  to 
suspect  that  the  Jury  trial  is  rather  a  curse  than  a  blessing. 
Hence  the  increasing  partiality  for  Courts  of  Equity.     In 


THE    PRINCIPLES    OP    PLEADING.  61 

some  States  the  law  permits  the  parties  to  dispense  with  a 
jury  by  consent,  and  it  has  been  found  that  they  generally 
do  so,  unless  one  or  the  other,  conscious  of  the  badness  of 
his  cause,  refuses  to  surrender  his  chance  of  finding  enough 
of  ignorance  and  prejudice  in  the  jury  to  confound  right 
and  wrong.  The  jurors  themselves  begin  to  understand 
this.  They  suspect  the  motive  of  the  man  who  appeals  to 
them ;  the  better  sort  regard  this  appeal  as  any  thing  but 
a  compliment,  and  almost  prejudge  the  party's  cause  as 
one  condemned  by  his  own  consciousness  of  wrong.  Hence 
such  appeals  are  rare.  I  have  gone  through  whole  terms 
without  impanelling  a  jury  except  in  criminal  cases.  The 
time  for  applying  the  true  remedy  is  quickly  passing  away. 
If  men  do  not  mean  to  come  under  the  dominion  of  a 
Roman  Praetor  or  a  Turkish  Cadi,  they  must  make  up 
their  minds  to  submit  to  the  authority  of  a  Common  Law 
Judge. 

Some  lurking  consciousness  of  these  things  has  restrain- 
ed our  Legislature  and  Judges  from  renouncing  the  leading 
principles,  or  even  the  established  forms,  of  pleading. 
But  while  they  retain  these,  they  permit  the  principles  to 
be  violated  and  the  forms  dispensedAvith,  with  impunity. 
To  the  last  I  have  no  objection.  The  use  of  forms  is  to 
secure  attraction  to  substance,  and  I  should  be  the  last  to 
visit  with  condemnation  a  pleading  substantially  good, 
merely  because  the  pleader  had  failed  to  avail  himself  of 
the  facilities  afforded  by  the  established  forms.  In  this 
spirit  the  English  Statute  of  Jeofails  wisely  forbad  that 
any  judgment  should  be  arrested  for  certain  enumerated 
defects.  Our  own  legislature  did  wisely  in  adopting  this 
list,  and  extending  it  so  as  to  embrace  not  only  what  had 
been  mere  defects  of  form,  as  the  law  formerly  stood,  but 
others,  which,  although  once  substantial,  had  come,  bv 
occasional  changes  in  the  law,  to  be  merely  formal.  Had 
our  statute  embraced  all  such,  no  mischief  would  have  been 
6 


02  THE    PRINCIPLES    OF    PLEADING. 

done,  and  none  would  have  ensued.  But  some  of  these 
were  left  as  at  Common  Law,  and  judgments  continued 
to  be  arrested  and  reversed  for  defects  of  no  sort  of 
consequence,  merely  because,  five  hundred  years  ago,  it 
had  been  decided  that  such  defects  were  not  merely  for- 
mal but  substantial.  Rash  reasoners  hence  concluded  that 
injustice  might  be  done  by  too  scrupulous  attention  even  to 
substance,  and  to  this  conclusion  we  owe  subsequent  stat- 
utes, of  which  I  shall  presently  speak. 

If  I  were  required  to  say  what  is  the  one  great  aim  of 
pleading,  I  would  answer,  that  it  is  to  make  sure  that  the 
disputed  and  important  facts  of  the  case  shall  be  ascertain- 
ed by  the  verdict  of  a  jury.  To  this  end  it  first  proposes 
to  separate  the  undisputed  from  the  disputed.  This  is 
done  by  the  parties  themselves.  The  next  step  is  to  sep- 
arate the  unimportant  from  the  important.  This  is  done 
by  the  Court.  The  residuum  constitutes  the  issue,  the 
development  of  which  is  said  to  be  the  aim  and  end  of 
pleading. 

The  first  of  these  objects  cannot  be  accomplished,  but  by 
permitting  the  parties  to  speak  for  themselves,  alleging, 
denying  or  admitting,  according  to  their  ideas  of  the  truth. 
The  second  cannot  be  attained,  but  by  authorizing  the 
court  to  decide  what  matters  so  alleged  are  important, 
what  unimportant.  This  is  the  qucistio  juris  for  the 
Judge. 

.buy  trial  is  then  the  very  body  and  essence  of  the  thing. 
The  substantiate  of  pleading  arc  its  organs  and  members, 
by  which  it  lives  and  acts.  The  ppjetja-  are  but  the  gax-UMm 
niture.  If  these  are  inconvenient,  change  them.  If  cum- 
brous, throw  them  off.  lint  to  go  farther,  to  lop  off  the 
limbs  themselves,  in  the  hope  of  invigorating  the  trunk,  is 
but  to  reverse  the  blunder  which  Agrippa  relinked,  by  his 
fable  of  the  Belly  and  the  Limbs.  The  Belly  was  con- 
tent to  prove  itself  necessary   to  the  Limbs,  but   did  not 


THE    PRINCIPLES    OP    PLEADING.  63 

pretend  it  could  live  without  their  aid.  Just  so  it  is,  that 
while  pleading  is  of  no  use  without  jury  trial,  jury  trial 
on  the  other  hand,  without  pleading,  becomes  not  a  bless- 
ing but  a  curse.* 

The  reader  needs  not  to  be  told,  that  the  proceedings  of 
our  Courts  of  Justice,  under  the  ante-revolutionary  regime, 
were  often  attended  with  very  unjust  results.  Yet,  bad  as 
they  must  have  been,  they  were  probably  less  shocking,  at 
a  time  when  all  the  Courts  went  wrong  together,  than 
after  the  'new  cloth'  of  a  system  of  Courts,  wherein 
learned  Judges  presided,  was  put  into  the  '  old  garment.' 
Judge  Pendleton's  favorite  maxim  'never  if  possible  to 
suffer  a  good  cause  to  be  lost  by  the  blunder  of  the  attor- 
ney '  had  its  bounds.  It  was  not  always  possible  to  do 
this,  and,  in  every  such  case,  all  parties  concurred  in 
charging  the  mischief  on  the  rules  of  pleading,  which 
therefore,  relaxed  as  they  were,  were  supposed  to  be  still 
too  rigid.  The  remedy  was  to  relax  them  farther.  The 
Court  must  therefore  no  longer  stickle  for  form.  But 
cases  occur  in  which  things  which  were  once  substantial, 
but  have  ceased  to  be  so,  are  held  to  be  substantial  still 
and  so  palpable  injustice  is  done  by  stickling  for  what  is 
called  substance.  The  remedy  would  have  been  to  have 
declared  that  these  things  should  no  longer  be  considered  as 
matter  of  substance,  and  to  put  them  in  the  same  category 
with  matters  strictly  of  form.  The  remedy  adopted  seems 
to  have  been  suggested  by  an  idea,  that  whatever  was  true 

*  One  of  our  innovating  Judges,  who  was  a  bad  lawyer  and  worse 
farmer,  once  proposed  to  carry  his  principles  of  Jurisprudence  into  his 
husbandry.  He  determined  accordingly,  that  his  corn  should  not  be 
burdened  by  the  unnecessary  waste  of  substance  in  supporting  the  part 
above  the  ear,  and  so  cut  off  all  the  tassels.  The  consequence  was  that 
the  widowed  ear,  separated  from  the  male  part  of  the  plant  brought  no 
corn.  Yet  the  tassel  was  hardly  more  necessary  to  supply  the  fecun- 
dating pollen  to  the  ear,  than  pleading  is  to  bring  before  the  Jury  the 
very  issue  of  fact  they  are  to  try. 


64  THE    PRINCIPLES    OF    PLEADING. 

of  one  substantial  defect  must  be  equally  true  of  all.  Rea- 
soning, as  it  would  seem,  from  the  premise,  the  legislature 
of  Virginia  arrived  at  the  conclusion,  that,  as  injustice  had 
been  done  by  insisting  on  certain  matters  declared  to  be 
matters  of  substance,  injustice  might  be  done  by  insisting 
on  any  other  matter  of  substance,  and  therefore  no  matter 
of  substance  whatever  should  be  insisted  on.  The  result 
of  the  whole  was,  that  no  judgment  could  be  arrested  for 
any  defect  whatever. 

An  example  will  illustrate  this  non  secpiitur. 

For  reasons  foreign'to  the  interests  and  mutual  rights  of 
the  parties,  the  Courts  in  England  would  not  sustain  a 
declaration  in  trespass,  which  did  not  charge  that  the 
wrong  had  been  done  '  with  force  and  arms,'  or,  in  the 
language  of  the  old  Latin  forms,  ivi  et  armis.'  Hence 
these  words  were  insisted  upon  as  matter  of  substance,  and 
judgments,  otherwise  faultless,  were  arrested  or  reversed 
for  want  of  them.  Now  had  our  Courts  duly  considered 
the  reasons  why,  in  England,  these  words  were  deemed 
substantial  there,  they  would  have  seen  that  those  reasons 
either  did  not  exist,  or  had  lost  their  importance  here. 
The  next  step  would  have  been  to  apply  the  maxim 
'cessante  ratione  legis  cessat  et  ipsa  le'  and  so,  the  words 
being  held  to  be  merely  formal,  no  judgment  would  have 
been  arrested  for  want  of  them.  But  they  decided  this 
phrase  to  be  matter  of  substance,  the  want  of  which  was 
fatal,  and  so  led  an  inconsiderate  legislature  to  conclude,  that 
there  was  no  less  folly,  in  arresting  or  reversing  a  judg-, 
ment  for  the  want  of  matters  of  substance,  than  for  want  of 
mere  form. 

This  false  reasoning  gave  rise  to  the  Statute  of  Jeofails  as 
it  stands  in  the  Revised  Code  of  1819.  That  Statute, 
intended  to  simplify  proceedings  at  Law,  has  involved 
the  subjeel  in  a  perplexity  from  which  no  human  ingenuity 
can    extricate    it.      No    writer    has    ever    undertaken    to 


THE    PRINCIPLES    OF    PLEADING.  65 

expound  it ;  no  judge  pretends  to  understand  it ;  and  no 
lawyer  would  venture  to  hazard  his  cause,  by  endeavoring 
to  avail  himself  of  some  of  its  provisions.  There  wanted 
but  one  thing  to  complete  its  absurdity ;  and  that  was 
added  afterwards,  when  judgments  for  want  of  appearance 
were  put  upon  the  same  footing  with  judgments  rendered 
in  the  finding  of  a  jury. 

To  vindicate  the  justice  of  this  censure  I  will  put  a  sin- 
gle case  which  might  arise  under  it.  A.  issues  against  B. 
a  writ  in  assault  and  battery.  B.  called  away  by  business, 
proposes  to  himself  to  suffer  judgment  by  default,  and,  at 
the  ensuing  term,  to  set  aside  the  office  judgment  and 
plead  as  he  has  a  right  to  do.  A.  meantime  files  a  declar- 
ation in  debt  (it  may  be  on  verbal  jLvgiimeirt)  for  as  many  4y. 
thousand  dollars  as  he  thinks  proper,  and,  in  due  time, 
enters  in  the  office,  not  a  judgment  in  trespass  for  damages 
to  be  ascertained  at  the  next  term,  but  a  judgment  pe- 
remptory and  final,  for  a  sum  of  money  in  numero.  Now  I 
should  like  to  ask  the  compounder  of  that  sovereign 
panacea  for  all  the  blunders  of  the  pleader,  what  would  be 
B.'s  remedy  in  this  case.  The  statute  declares  that  no 
judgment  shall  be  arrested  or  reversed  for  any  variance 
between  the  wi'it  and  declaration.  "Would  he  say  that  this 
judgment  shall  stand  and  be  enforced.  He  would  perhaps 
tell  me  something  about  a  Court  of  Equity,  that  limbo  in 
which  those  who  lose  their  way  in  the  Law  are  so  apt  to 
be  found.  But  I  would  ask  a  lawyer  of  a  somewhat 
larger  calibre,  whether  a  Court  would  regard  this  writ  and 
this  declaration  as  belonging  to  the  same  case.  Perhaps 
he  might  decide,  as  I  should,  that  here  is  a  writ  not  follow- 
ed up  by  a  declaration,  and  a  declaration  without  a  writ, 
that  the  judgment  on  the  declaration  should  be  set  aside 
for  irregularity  and  judgment  of  nonpros,  be  entered  on  the 
writ. 

But  we  may  suppose  the  plaintiff  A.  to  be  aware  of  a 
6* 


tlitm 


gy^i 


66  THE    PRINCIPLES     OF    PLEADING. 

sort  of  necessity  for  some  little  congruity  between  the 
declaration  and  writ,  and  to  declare  thus.  '  A.  complains 
of  B.  of  a  plea  that  he  render  to  him  the  sum  of  one 
million  of  dollars  which  the  said  B.  owes  to  and  unjustly 
detains  from  him,  for  this  to  wit  that  the  said  B.  on  the 
day  of  at  the  county  aforesaid  an  assault 

did  make  on  the  said  A.  and  him  the  said  A.  did  then  and 
there  beat,  bruise  and  wound,  whereby  the  said  B.  became 
indebted  to  the  said  A.  in  the  said  sum  of  one  million  of 
dollars  above  demanded.  Yet  the  said  B.  though  often 
required  has  not  paid  to  the  said  A.  the  said  sum  of  one 
million  of  dollars,  but  to  pay  the  same  has  hitherto  alto- 
gether refused  and  yet  refuses  ;  to  the  damage  of  the  said 
A.  of  ten  dollars  —  wherefore  he  brings  suit.' 

Now  it  is  very  plain  that  the  conclusion  here  is  a  non 
sequitur  from  the  premises.  But  the  Clerk  is  not  to 
judge  of  that.  That  is  a  matter  to  be  decided  by  the 
court  on  demurrer.  But  B.,  who  is  very  properly  attend- 
ing to  his  business  at  New  Orleans  or  Texas,  does  not 
demur,  and  the  Clerk  must  enter  some  judgment.  Now 
T  take  upon  me  to  afhrm,  that  that  judgment  must  be  the 
same  prayed  for,  and  no  other,  that  is,  a  peremptory 
judgment  for  $1000,000.  What  then  will  be  B.'s  remedy, 
when  he  comes  home  in  due  time  to  defend  the  action  of 
trespass,  and  finds  the  Sheriff'  with  an  execution  in  his 
house,  on  a  judgment  for  debt?  The  Statute  says,  that 
no  judgment  shall  be  arrested  or  reversed  for  any  defect, 
Cor  which  the  party  might  have  demurred,  if  he  did  not 
demur;  and  if  an  attempt  were  made,  as  in  the  other 
casej  to  set  aside  the  judgment  as  irregular,  because  the 
writ  and  declaration  do  not  belong  to  the.  same  case,  he 
might  defy  his  adversary  to  show  what  writ,  but  a  writ  in 

trespass,  could  be  appropriate  to  the  slatemelit  of  facts 
made  in  the  declaration.  The  fault  is  one  to  be  corrected 
by   dcmurri  r,   and   B.  not   having  demurred,  because  he 


THE    PRINCIPLES    OP    PLEADING.  67 

had  no  intimation  of  a  demand  to  be  decided  so  abruptly, 
shall  not  arrest  the  judgment.  Shall  it  stand  ?  Shall  it 
be  enforced  ?  The  Statute  says  yes,  and  of  the  people,  in 
whose  name  that  Statute  was  enacted,  there  is  not  one 
man  who  will  not  say  no. 

But  while  the  Legislature  have  thus  unsparingly  laid 
the  defendant,  who,  from  any  cause  fails  to  attend  to  his 
defence,  at  the  mercy  of  the  plaintiff,  that  body  has  been 
equally  careful  to  provide  the  litigious  defendant  with  the 
means  of  embarrassing  and  baffling  his  adversary.  Thus 
it  will  be  seen  that,  while  one,  against  whom  a  judgment 
has  been  rendered  sub  silent  io,  is  left  without  remedy,  or  at 
best  with  but  a  doubtful  remedy,  though  every  step  of  the 
proceeding  should  have  been  against  law  ;  the  party,  who 
actually  appears  and  defends  the  suit,  is  provided  with  a 
means  of  getting  rid  of  the  judgment,  far  more  efficacious 
than  the  motion  in  arrest  had  been,  before  any  statute  of 
Jeofails  was  enacted. 

I  have  already  said  that  one  of  the  advantages  of  the 
system  of  pleading  was  to  be  found  in  the  separation  of 
the  undisputed  from  the  disputed  facts  of  the  case.  This 
is  in  fact  what  the  law,  the  universal  arbiter,  should 
propose  to  itself,  as  every  arbiter,  when  appealed  to, 
wishes  first  to  ascertain  what  it  is  that  the  parties  do  really 
differ  about.  This  is  the  matter  to  be  decided.  Hence 
the  Common  Law  required,  that  each  party  should  confine 
himself  to  the  allegation  of  some  one  matter.  This  was. 
supposed  to  answer  every  purpose  of  justice ;  for  though 
the  defendant  might  have  two  different  grounds  of  defence, 
yet  any  one  of  them,  if  sufficient  in  law,  and  true  in  fact, 
was  sure  to  decide  the  case  in  his  favor.  The  law  per- 
haps went  too  far,  in  confining  the  party  to  one  answer,  as 
might  have  been  quite  right,  if,  in  point  of  fact,  he  always 
knew  the  truth  of  his  case,  and  also  always  knew  what 
could  be  proved.     But  he  does  not  always  know  this.     To 


68  THE    PRINCIPLES    OF    PLEADING. 

require  him,  at  his  peril,  to  choose  his  ground  of  defence, 
and  abide  by  it,  might  therefore  work  injustice.  Thus,  a 
bond  might  be  tainted  both  with  usury  and  gaming,  and 
so  void  on  either  account.  The  defendant  might  doubt 
whether  he  could  prove  either.  He  ought  then  to  be  at 
liberty  to  try  both  defences.  Hence  it  was  enacted  in 
England  that  he  might,  by  leave  of  the  Court,  plead  both 
matters.  This  leave  was  always  given  of  course,  unless 
the  defendant  proposed  to  offer  pleas  contradictory  to  or 
inconsistent  with  each  other.  This  could  hardly  ever  be 
necessary  to  any  good  purpose,  and  if,  in  any  very  extra- 
ordinary case,  the  party  should  so  far  mistake  his  defence, 
there  was  always  a  remedy,  by  way  of  setting  aside  the 
proceedings  on  the  ground  of  surprise,  and  permitting  the 
defendant  to  plead  de  novo.  Thus,  in  an  action  of  slander, 
the  plea  of  not  guilty  denies  the  speaking  of  the  words, 
while  every  plea  of  justification  admits  it.  Now  in  such  a 
case  the  defendant  may  not  remember  having  spoken 
them.  He  may  believe  that  he  did  not  speak  them.  He 
therefore  pleads  not  guilty,  though  at  the  same  time  he 
may  be  quite  sure  that,  had  he  done  so,  he  would  have 
said  no  more  than  the  truth.  But  at  the  trial,  to  his  utter 
amazement,  the  speaking  of  the  words  is  proved,  and  a 
verdict  goes  against  him.  He  therefore  makes  an  affidavit, 
that  he  had  not  remembered  speaking  them,  and  that  he 
had  been  surprised  by  the  evidence  to  that  effect ;  and 
moreover,  that  had  he  been  aware  of  the  necessity  of  so 
doing,  he  would  have  plead,  and  could  have  proved  that 
the  words  so  spoken  were  true.  On  such  an  affidavit  a 
motion  to  set  aside  the  verdict,  and  to  give  leave  to  plead 
accordingly,  might  be  sustained.  Now  this  proceeding  is 
confessedly  circuitous,  but  such  cases  are  so  rare,  that  it  is 
clearly  better,  that  they  should  be  left  to  this  somewhat 
inconvenient  remedy,  rather  than  to  derange  the  whole 
system  of  pleading,  in  order  to  provide  for  the  possible 
occurrence  of  a  case  of  this  sort. 


THE    PRINCIPLES    OF    PLEADING.  69 

The  legislature  of  Virginia  thought  differently,  and 
permitted  the  defendant  to  encumber  the  record,  and 
harass  his  adversary,  and  perplex  the  court  and  jury  with 
all  sorts  of  contradictory  assertions,  and  denials.  But 
they  did  not  stop  here.  The  defendant  is  authorized  by 
Statute  to  plead  as  many  matters  of  law  or  fact  as  he 
pleases,  and  so  he  may  demur  and  plead  at  the  same  time. 

Now,  as  the  law  stood  before,  the  defendant  who 
doubted  whether  his  adversary's  complaint  was  actionable, 
might  have  had  that  question  tried  on  demurrer.  By  this 
he  obtained  the  decision  of  the  Court,  whether  it  was 
necessary  for  him  to  plead  to  what  he  deemed  a  frivolous 
charge.  Should  the  decision  be  adverse  to  him,  he  might 
6uffer  judgment  to  be  entered  on  the  demurrer,  in  con- 
formity to  such  decision,  and  appeal  from  that  judg- 
ment ;  or  he  might  prevent  any  judgment  from  being 
entered,  by  asking  leave  to  withdraw  his  demurrer,  and 
plead.  For  reasons  already  given,  this  leave  was  indis- 
pensable, but  it  was  never  denied ;  and,  the  demurrer 
being  withdrawn,  the  case  went  on,  as  if  it  had  never 
been  filed.  If,  on  the  other  hand  the  demurrer  were 
allowed  to  remain,  the  judgment,  on  the  admission  of  fact 
implied  in  it,  must  be  entered,  and  no  other  judgment 
could  ever  be  given  in  the  case,  except  by  reversing  that. 

Now  our  Legislature  has  provided,  that  the  defendant 
may  demur  and  plead  at  the  same  time,  and  that  the 
demurrer  shall  be  decided  first,  and  the  issue  of  fact  after- 
wards. Hence  the  defendant  is  under  no  necessity  of 
asking  leave  to  withdraw  his  demurrer,  in  order  to  be  in 
condition  to  plead.  His  plea  is  already  on  file,  and  must 
be  tried.  No  judgment  final,  therefore,  in  favor  of  the 
Plaintiff,  can  be  entered  on  the  demurrer.  If  indeed  the 
demurrer  be  sustained,  judgment  will  be  entered  against 
him,  unless  he  evades  it  by  asking  leave  to  amend  his 
declaration.     But  all  that  can  be  done  in  his  favor  will  be 


rfr 


70  THE    PRINCIPLES    OF    PLEADING. 

to  overrule  the  demurrer,  and  proceed  to  try  the  issue  of 
fact. 

Let  us  suppose  then,  that  the  defendant's  demurrer  has, 
by  an  error  of  the  Court,  been  overruled,  when  it  ought  to 
have  been  sustained  ;  and,  the  case  having  gone  to  trial  on 
the  issue  of  fact,  the  plaintiff  gets  a  verdict.  Shall  not 
judgment  be  arrested  ;  and  if  judgment  be  rendered  on 
the  verdict,  shall  it  not  be  reversed  ? 

These  questions  must  both  be  answered  in  favor  of  the 
defendant.  Had  not  the  Court  erred,  no  judgment  ever 
could  have  been  rendered  against  him,  on  that  declaration. 
Nay  more ;  the  plaintiff  must  have  withdrawn  his  declar- 
ation, or  final  and  irreversible  judgment  must  have  gone 
against  him.  It  cannot  be,  then,  that  the  law  will  own  and 
ratify  a  judgment  of' "the  Court,  which  is  exactly  the  re- 
verse of  that,  which  would  have  been  rendered,  if  the 
Court  had  not  mistaken  and  misrepresented  the  law. 

It  cannot  be  necessary  to  amplify  this  argument,  or  to  en- 
force a  conclusion  so  obvious.  But  I  beg  the  reader  to 
observe  that  the  record  shows  nothing  of  the  circumstances, 
attending  the  demurrer.  The  record  merely  shows  the  plain- 
tiff's case,  l^fc-  admission  of  its  truth  by  demurrer,  and  the 
prayer  of  judgment  whether  it  presents  a  cause  of  action, 
followed  by  a  decision  that  it  does,  and  a  consequent  overru- 
ling of  the  demurrer.  Then  comes  the  plea,  denying  what  the 
demurrer  had  admitted,  and  the  verdict  of  the  jury  estab- 
lishing the  facts,  as  alleged  by  the  plaintiff.  It  is  curious 
to  observe  that  the  case  presented  by  the  verdict,  is  precise- 
ly the  same  presented  by  the  demurrer.  The  jury  have 
but  found  the  very  facts  before  admitted  by  the  demurrer, 
and  the  conclusion  of  the  law  therefore  must  be  the  same 
in  both  cases.  It  may  be  expected  therefore,  that  the 
Court,  which  had  overruled  the  demurrer  admitting  the 
fact,  will,  unless  convinced  of  its  error,  give  judgment  for 
the  plaintiff,  on  the  verdict  finding  it  to  be  true.     But,  by 


THE    PRINCIPLES    OP    PLEADING.  71 

parity  of  reason,  the  Law,  which,  if  truly  represented, 
would  have  given  judgment  for  the  defendant  on  the 
demurrer,  will  never  give  judgment  on  the  verdict  against 
him.  Nothing  can  be  done,  but  to  disregard  the  verdict, 
and,  going  back  to  the  demurrer,  give  judgment  for  the 
defendant  on  that,  as  should  have  been  done  at  first. 

Now,  from  this  abstract  of  the  record,  it  may  be  seen, 
that  there  will  be  nothing  to  show,  whether  the  defect  in 
the  declaration  was  pointed  out  to  the  Court  by  the  de- 
fendant's attorney  ;  whether  he  himself  overlooked  it ;  or 
whether  he  purposely  said  nothing  about  it,  with  a  view  to 
take  his  chance  before  the  jury,  and  if  defeated  there,  to 
fall  back  on  the  defect  in  the  declaration.  This  he  does, 
either  by  motion  in  arrest  of  judgment,  or  by  suffering 
judgment  to  go  against  him  and  aw—tag  it,  after  a  lapse  of  Uv#i4tMA 
five  years,  in  the  Court  of  appeals.  ^ 

A  dextrous  pleader,  contending  with  an  unskilful  adver- 
sary, can,  at  any  time  take  such  an  advantage  ;  and  many 
lawyers  habitually  file  demurrers  with' their  pleas,  in  every 
case,  with  this  view.  The  probability  of  such  things  is  much 
enhanced  by  the  loose  practice  countenanced  by  the  Statute 
of  Jeofails.  For  want  of  habits  of  correct  pleading,  lawyers 
are  apt  to  make  slips,  and  then  to  overlook  them.  The 
Court  is  never  expected  to  detect  faults  not  insisted  on  ; 
and  so  the  demurrer  is  overruled,  and  the  plaintiff  caught 
in  the  snare. 

Thus,  the  Statute  declares,  that  no  judgment  shall  be 
arrested  for  want  of  the  words  '  with  force  and  arms.' 
Lawyers  thus  come  to  think  them  of  no  consequence,  and 
so  the  plaintiff's  counsel  inconsiderately  omits  them.  Now, 
although  the  judgment  cannot  be  arrested  for  the  want  of 
them,  yet  when  the  point  comes  up  on  general  demurrer, 
the  law  is  just  as  strict  as  it  ever  was.  The  declaration  is 
bad,  and  the  demurrer  ought  to  be  sustained.  But  the 
counsel  for  the  defendant  has  a  habit  of  demurrin°;  in  all 


72  THE    PRINCIPLES    OF    PLEADING. 

cases ;  and  there  is  nothing  therefore  to  alarm  the  plain- 
tiff's attorney  into  a  revision  of  his  declaration.  The  case 
is  submitted  without  argument;  and,  no  objection  to  the 
declaration  being  urged,  the  demurrer  is  overruled.  The 
defendant  then  goes  to  trial  on  the  plea  of  not  guilty.  If 
he  succeeds,  well  and  good.  If  not,  and  the  jury  let  him 
off  with  any  moderate  damages,  he  may  acquiesce.  But 
if  the  damages  are  heavy,  and  he  is  not  disposed  to  abuse 
his  advantages,  he  may  be  content  to  arrest  the  judgment 
and  take  a  new  chance.  But,  if  determined  to  contest  the 
matter,  he  suffers  judgment  to  go,  sues  out  a  writ  of  error, 
and  takes  the  case  to  the  Court  of  Appeals,  where  the 
action  will  probably  outlive  one  or  other  of  the  parties. 
In  that  event,  actio  personalis  moritur  cum  persona,  and 
so  he  gets  rid  of  the- suit  altogether.* 

Innumerable  similar  cases  might  be  put,  from  which 
there  could  be  no  escape,  unless  the  Judge  should  take 
upon  himself  the  task  of  the  defendant's  counsel,  hunt  for 
defects  in  the  declaration,  and  sustain  the  demurrer,  for 
some  real  or  supposed  defect,  which  had  escaped  the 
astuteness  of  both  parties.  No  Judge  could  pursue  such 
a   course,    without   losing    (however   undeservedly)    that 

*  In  Missouri  they  have  a  silly  Statute,  expressly  authorizing  the 
plea  of  payment  in  actions  of  Assumpsit.  I  once  knew  a  gentleman, 
who  was  in  the  constant  habit  of  filing  this  plea  with  that  of  non- 
assumpsit,  and  would  never  tell  his  object.  On  one  occasion  he  was 
engaged  to  defend  a  suit  in  assumpsit,  brought  on  a  very  equivocal 
paper,  which  was  decided  to  be  a  sealed  instrument,  and  so  not  admis- 
sible. The  plaintiff,  on  the  exclusion  of  the  paper,  determined  to  suffer 
judgment,  and  talec  the  case  up.  The  Jury  returned  a  general  verdict 
for  the  defendant,  and  his  counsel  tooli  cue  to  have  the  finding  entered 
at  length,  to  wit;  'that  the  defendant  did  not  assume,'  and  '  ilmt  he  had 
punl '  Afterwards  the  plaintiff's  counsel,  convinced  of  his  original  error, 
broughl  debt  on  the  bond,  and  the  same  gentleman  pleaded  payment 
and  proved  it  by  the  record.  I  lad  he  practised  in  Virginia,  he  would 
have  reversed  a  hundred  judgments,  because  demurrer  had  been  over- 
ruled nih  tilentio,  which  might  have  been  sustained  by  a  bare  hint  of 
the  defect  in  the  declaration. 


TIIE    PRINCIPLES    OF    PLEADING.  73 

character  for  impartiality,  so  necessary  to  the  successful 
discharge  of  his  duties. 

.  It  is  possible,  that,  when  the  Legislature  on  the  one 
hand  abolished  the  motion  in  arrest  of  judgment,  and,  on 
the  other,  gave  the  defendant  leave  to  plead  more  pleas 
than  one  at  the  same  time,  they  were  supposed  to  have  an 
eye  to  justice  between  plaintiffs  and  defendants,  by  giving 
a  new  advantage,  while  an  old  one  was  taken  away.  But 
it  ought  to  have  occurred  to  them,  that  there  is,  in  truth 
no  such  balance  of  advantages  between  the  parties,  in  any 
particular  case.  If  the  defendant  avails  himself  of  the  one, 
he  secures  both.  If,  from  any  cause,  he  fails  to  make  use 
of  the  privilege  of  pleading  and  demurring  at  the  same,  he 
cannot  as  formerly,  arrest  the  judgment.  If  he  does  plead 
and  demur  at  once,  he  can  have  no  use  for  the  motion  in 
arrest,  for  the  statute  has  indirectly  furnished  him  a  far 
more  extensive  remedy. 

I  say  more  extensive  because  many  defects  in  the  declar- 
ation, which  were  and  are  fatal  on  demurrer,  were  liable 
to  be  cured,  even  at  Common  Law,  by  the  defendant's  plea, 
or  by  the  verdict.  It  might  happen,  and  sometimes  did, 
that  a  fact,  indispensable  to  the  plaintiff's  case,  was  left 
out  of  the  declaration,  but  introduced  into  the  record  by  the 
plea,  or  by  the  verdict.  Then  on  the  motion  to  arrest  the 
judgment,  the  Court,  looking  to  the  whole  record,  and  find- 
ing there  all  the  facts,  duly  ascertained,  which  would 
entitle  the  plaintiff  to  judgment,  must  overrule  the  motion 
and  give  judgment  accordingly.  The  idco  consideration, 
—  or  conclusion  of  law  from  the  facts  in  the  record,  is  of 
course  the  same,  whether  they  were  introduced  at  one 
stage  of  the  proceeding  or  another.  Being  there,  judg- 
ment should  be  given  upon  them,  and  cannot  be  reversed. 
But  the  judgment  on  demurrer  to  the  declaration  is  giv- 
en, when  as  vet  the  facts  to  be  supplied  by  the  pleadings 
and  verdict  are  not  before  the  Court ;  and  the  question 
7 


74  THE    PRINCIPLES    OP    PLEADING. 

before  the  appellate  Court  always  is,  '  what  judgment 
should  have  been  given  on  the  record  as  it  then  stood  ? ' 
Hence  it  would  seem,  that,  under  this  Statute,  a  judgment 
might  be  reversed  after  verdict,  because  a  demurrer  had 
been  overruled  when  it  ought  to  have  been  sustained ; 
though,  on  the  record,  as  it  stands  after  verdict,  a  motion  in 
arrest  of  judgment  ought  to  be  overruled.  I  dare  say  the 
Court  of  Appeals  wrould  strain  hard  to  keep  clear  of  this 
absurdity,  but,  to  do  this,  they  would  have  to  affirm  a  judg- 
ment against  the  defendant,  which  never  would  have  been 
given,  if  a  matter  which  ought  to  have  been  decided  in  his 
favor  had  not  been  decided  against  him.  This  might  be 
the  lesser  absurdity  of  the  two. 

Be  that  as  it  may  ;  I  conceive  there  can  be  no  doubt,  in 
cases  where  the  demurrer  is  taken  for  defects,  which,  at 
common  law,  would  have  been  fatal,  on  motion  in  arrest  of 
judgment.  In  all  such  cases,  by  the  rules  of  the  Common 
Law,  the  demurrer  ought  to  be  sustained  ;  and  the  Statute 
has  made  no  change  in  this  respect.  I  can  see  no  loop 
hole,  through  which  the  appellate  Court  could  escape  from 
the  necessity  of  reversing  a  judgment  in  trespass,  when  the 
gist  of  the  action  is  laid  with  a  quod  cum,  if  the  declaration 
is  demurred  to,  the  demurrer  overruled  (as  it  probably 
would  be  through  inadvertence)  and  followed  by  a  verdict 
for  the  plaintiff,  on  the  plea  of  not  guilty.  With  all  their 
desire  '  to  save  a  good  cause  from  being  lost  by  a  blunder 
of  the  pleader,'  they  would  see  that  here  is  a  judgment 
not  warranted  by  either  the  Common  Law  or  the  Statute. 
Not  by  the  Common  Law,  for  the  jury  have  but  found  the 
defendant  guilty  of  all  that  the  plaintiff  has  charged.  And 
what  has  he  charged?  Nothing  at  all.  lie  has  spoken 
altogether  in  the  subjunctive  mood,, which  affirms  nothing.* 

*  The  truth  of  what  is  here  said  may  not  be  very  obvious  from  the 
inspection  of  such  a  declaration  in  the  English  Language,  though  the 
point  was  more  than  once  expressly  decided  by  our  Court  of  Appeals. 


THE    PRINCIPLES    OF    PLEADING.  75 

Nor  will  the  judgment  be  saved  by  the  Statute,  because 
that  only  applies  to  motions  in  arrest  of  judgment,  and  to 
these  only  in  cases  in  which  no  demurrer  has  been  filed. 

If  any  lawyer  shall  be  of  opinion,  notwithstanding,  that 
such  a  judgment  ought  to  be  affirmed,  from  a  regard  to, 
what  it  is  the  fashion  to  call,  substantial  justice,  I  will 
ask  him  to  turn  back  to  the  case  already  put,  of  a  judg- 
ment, as  for  debt,  obtained,  by  surprise,  on  a  writ  in  tres- 
pass, and  decide  what  shall  be  done  with  that  case.  That 
is  a  judgment  condemned  by  Law,  Equity  and  common 
sense.  Yet  the  very  letter  of  the  Statute  declares  that  it 
shall  not  be  arrested  or  reversed.  How  is  he  to  get  rid  of 
it? 

Perhaps  it  might  occur  to  him,  that,  when  the  Statute 
declares  that  no  judgment  shall  be  arrested  for  certain 
defects,  it  only  means,  that,  notwithstanding  such  defects, 
the  Court  shall  proceed  to  render  such  judgment,  as, 
according  to  Laiv,  the  facts  of  the  case  may  warrant, 
and  no  other.  This  is  certainly  what  the  Statute  ought  to 
mean  ;  for  if  any  other  judgment  be  rendered,  such  judg- 
ment will  not  be  the  conclusion  of  the  Law  from  the  facts. 
I  dare  say  the  framer  of  the  Statute  would  say  that  this 
is  what  he  meant.  If  so,  I  should  like  to  ask  him,  what 
Arrest  of  Judgment  is,  but  a  refusal  of  the  Court  to  render 
judgment,  because  there  are  not  facts  in  the  case  to  war- 
rant it?  I  shall  not  task  my  mind  to  conjecture  how  he 
would  get  out  of  the  dilemma,  but  I  venture  to  suggest, 
that,  if  that  blot  be  not  expunged  from  our  statute  book, 
the  Courts  will,  at  some  time  or  other,  see  the  necessity  of 
saying,  that  (whatever  be  the  meaning  of  the   Statute)  it 

But  look  at  such  a  declaration  in  the  Latin  form,  and  every  scholar  will 
see  that  it  affirms  nothing-.  The  decisions  have  been  confined  to  cases 
of  trespass  ;  but  the  reason  of  it  is  applicable  to  every  case,  in  which 
the  gist  of  the  action  is  laid  under  a  quod  cum.  The  ordinary  formula  in 
debt  would  be  liable  to  this  objection,  if  it  were  not,  that  the  breach,  for 
reasons  that  I  shall  take  occasion  to  explain,  is  the  gist  of  the  action. 


76  THE    PRINCIPLES     OF    PLEADING. 

cannot  and  must  not  be  held  to  mean,  that  any  Court  shall 
be  bound  to  enter,  as  the  conclusioii  of  Law,  from  the 
facts  in  the  record,  a  judgment  utterly  at  variance  with 
the  conclusion  which  the  Law  actually  deduces  from  those 
facts. 

I  think  I  have  said  enough  to  satisfy  the  reader,  that 
whatever  of  injustice  may  have  been  perpetrated  in  the 
name  of  the  Law,  in  Virginia,  is  not  attributable  to  the 
system  of  pleading.  How  much  of  the  mischief  may  have 
been  produced  by  those  fragments  of  the  system,  which 
have  been  retained  in  practice,  I  am  not  prepared  to  say. 
Much  doubtless.  The  rudest  scheme  of  arbitration  would 
not  be  improved  by  introducing  into  it,  here  and  there,  the 
technicalities  of  a  refined  jurisprudence.  Every  thing  of 
the  sort  is  the  purpureus  pannus,  stuck  on  upon  a  coarse 
garment,  which  Avithout  it  would  be,  not  shabby,  but 
decent,  though  homely.  Some,  one  has  said  that  the  foot 
of  Venus  herself,  appended  to  the  extremities  of  a  fat  Berk- 
shire hog,  instead  of  his  own  horny  hoofs,  '  would  only  mar 
his  pig-perfection ;'  but  there  is  none  who  would  say, 
for  that  reason,  that  an  elegant  woman  is  not  a  more  beau- 
tiful creature  than  a  fat  hog. 

So  I  too  have  little  doubt,  that,  if  those  among  us  who 
have  the  power,  would  employ  proper  artists  to  restore  the 
lost  parts  of  the  system  of  pleading,  it  would  show  the 
same  superiority  over  the  rude  contrivances  which  some 
are  disposed  to  substitute  for  it. 

One  object,  which  I  have  in  view,  in  throwing  these  loose 
sheets,  in  an  unfinished  state,  before  the  public,  is  to  invite 
the  attention  of  the  Legislature  to  this  subject.  In  dis- 
missing it,  for  present,  I  beg  leave  to  apologize,  for  what- 
ever of  tartness,  or  seeming  disrespect  to  others  may  be 
found  in  my  remarks.  It  is  necessary  to  my  purpose  that 
what  I  have  written  shall  be  read,  and  I  could  not  afford 
to  be  dull  and  formal  for  the  sake  of  ceremony.     I  take 


THE    PRINCIPLES    OF    PLEADING.  77 

this  occasion  to  say,  once  for  all,  that  no  man  more  admires 
the  varied  ability  of  the  Virginia  bar  than  myself.  Few 
men  can  have  so  much  cause,  as  I,  to  think  and  speak 
with  reverence  of  the  Court  of  Appeals.  Among  those 
who  have  sat  upon  its  bench  I  number  a  father,  a  brother, 
and  the  husband  of  a  sister,  with  the  least  of  whom  it 
would  be  unpardonable  presumption  in  me  to  compare 
myself.  But  it  has  been  my  fortune  to  see  the  system  of 
pleading  carried  into  practice,  in  all  its  minutest  details. 
It  has  been  theirs  to  be  condemned  to  the  disheartening 
task,  of  trying  to  reconcile  its  principles  with  the  practice 
of  ante-revolutionary  courts,  and  with  the  well  intentioned 
blunders  of  precipitate  legislation.  I  have  but  spoken  on 
the  subject  of  pleading,  as  the  rudest  savage  from  the  wilds 
of  Africa  might  be  allowed  to  speak  of  the  cameleopard,  in 
the  presence  of  the  most  enlightened  naturalist  who  had 
never  seen  the  animal.  I  speak  but  as  a  witness  of  what 
I  know  by  experience ;  and,  as  a  witness,  I  beg  to  be  be- 
lieved, when  I  assure  my  brethren  of  the  profession,  who 
shrink  from  the  trouble  of  pleading,  that  it  is  in  truth  a 
labor-saving  machine.  I  can  say  confidently,  from  the 
experience  of  many  years,  that  it  is  not  more  to  be  valued 
as  an  instrument  of  justice,  than  as  a  means  of  expediting 
business,  and  lightening  the  labors  of  the  profession. 

I  will  beg  leave  to  say,  moreover,  (and  I  say  it  with 
unaffected  deference  to  abler  men,)  that  a  clear  view  of  the 
principles  of  pleading  will  often  give  a  clearer  view  of  the 
law  of  right  than  can  be  otherwise  obtained.  In  saying 
this  I  do  but  appropriate  the  saying  of  Lord  Coke,  who 
affirms  that  the  record  is  the  '  key  to  the  law.'  A 
remarkable  case  will  illustrate  this. 

In  Gilmer's  reports  p.  341,  is  an  action  brought  for  the 

recovery  of  sundry  slaves,  one  of  which  died  pendente 

lite,  and  the  question  before  the  Court  of  Appeals  was 

1  whether  or  not  the  plaintiff  should,  in  addition  to  damages 

7* 


78  THE    PRINCIPLES    OF    PLEADING. 

for  the  detention  of  the  dead  slave,  recover  his  value  when 
living.'  I  give  the  abstract  of  what  passed  in  Court 
from  2.  Tuckers  Commentaries  p.  82.  He  tells  us,  that 
'  Judge  Coalter  was  of  opinion  that  the  defendant  was  not 
liable  for  the  value,  after  the  slave  was  dead,  that  Judge 
Brooke  was  of  the  opposite  opinion,  and  that  Judge 
Roane,  the  remaining  Judge,  determined  only,  that,  as  the 
death  of  the  slave,  during  the  pendency  of  the  suit,  had 
not  been  pleaded,  the  defendant  could  not  avail  himself  of 
the  finding  of  the  jury  to  that  effect,  since  it  was  a  finding 
of  a  matter  not  in  issue.'  Thus  it  appears  that  the 
defendant  was  made  to  pay  for  the  dead  slave,  but  the  ques- 
tion, whether  he  was,  at  all  events,  bound  to  do  so,  remained 
undecided.  Therefore  the  commentator,  speaking  for 
himself,  goes  on  thus.  '  With  all  deference  to  this  high 
authority,  I  would  suggest  that  such  plea  could  not  have 
been  pleaded  ;  for  upon  Judge  Roane's  own  principles,  it 
would  not  have  barred  the  action  entirely,  since  the  plaintiff 
certainly  had  a  right  of  action  when  he  sued,  and  ought, 
at  least,  to  have  had  damages  for  the  detention :  and, 
unless  it  could  be  pleaded  as  a  good  bar  to  the  action  in 
toto,  it  could  not  be  pleaded  at  all.  On  the  other  hand. 
Judge  Brooke's  opinion,  that  the  party  ought  to  recover 
the  value  notwithstanding  the  death,  is  successfully  com- 
bated by  Judge  Coalter,  who  takes  the  obvious  distinction 
between  actions  of  trover  and  detinue  ;  that,  in  trover  the 
plaintiff"  admits  a  change  of  property,  and,  if  it  dies,  it 
dies  the  property  of  the  defendant,  who,  having  converted 
it,  is  estopped  to  say  the  property  was  the  property  of  the 
plaintiff,  and  thus  throw  the  loss  on  him.  But,  in  detinue, 
the  plaintiff  still  affirming  the  property  in  himself,  the 
life  of  the  slave  is  at  his  risque.  From  the  consideration 
urged  by  Judge  Coalter,  it  seems  to  me,  that  the  proper 
Course  i"  such  case,  is  to  plead  the  death  sinec  the  last 
continuance,  in   bar  of  the   recovery  of  the  slave,  or  his 


THE    PRINCIPLES    OF    PLEADING.  79 

value  :  for  the  loss  or  destruction  of  the  property  bailed 
is  admitted  to  be  a  good  defence,  if  properly  pleaded.  1. 
Chitty  121.  But  such  plea  admitting  the  detention,  the 
plaintiff  would  be  entitled  to  damages,  and  a  writ  of 
inquiry  thereof.  If  indeed  the  slave  came  to  his  death  by 
reason  of  the  defendant's  treatment,  another  action  would 
perhaps  afterwards  lie  to  recover  compensation  in  damages 
therefor.' 

Now  here  are  four  able  men  holding  four  different 
opinions  on  the  law  of  a  case,  in  regard  to  the  right  of 
which  there  can  be  but  one.  The  slave  having  lived  out  the 
natural  term  of  his  days,  without  any  act  on  the  part  of  the 
defendant  tending  to  abridge  them,  all  will  see,  that  if  hires 
up  to  the  time  of  his  death  are  given  by  way  of  damages, 
the  defendant  will  be  made  to  pay  for  all  he  got,  and  the 
plaintiff  will  receive  all  he  lost.  The  difficulty  with  these 
gentlemen  seems  to  have  been  as  to  the  road  by  which 
this  result  was  to  be  reached.  How  there  should  be  such 
difficulty,  is  not  very  obvious.  The  following  passage  from 
the  commentator  may  help  us  to  understand  the  cause  of 
it.  Proceeding  to  speak  of  the  verdict  in  detinue,  he 
says,  that,  when  rendered  for  the  plaintiff,  it  is  to  the 
following  effect.  '  We  the  jury  find  for  the  plaintiff  the 
slaves  in  the  declaration  mentioned  of  the  value  following  ; 
that  is  to  say,  negro  Harry  of  the  value  of  $500,  negro 
Tom  of  the  value  of  $400,  and  negro  Sarah  of  the  value 
of  $250,  and  we  further  find  for  the  plaintiff  $500  damages 
for  the  detention  of  the  said  slaves.' 

Now  it  is  very  true  that  this  is  a  fair  transcript  of  the 
sort  of  paper,  generally  handed  in  by  the  jury;  and  that  it 
is  generally  entered  on  our  records  in  the  same  form ;  but 
it  is  equally  true  that  this  is  no  verdict.  The  will  and 
pleasure  of  the  jury  are  announced,  but  as  to  responding 
to  the  issue,  with  that  directness  which  might  remind  them 
of  their  oaths,  they  have  not  done  so.     There  is  indeed 


80  THE    PRINCIPLES    OF    PLEADING. 

something  peculiar  in  the  verdict  in  detinue.  It  is  not  a 
mere  response  to  the  question  put  hy  the  issue,  but  it  is  to 
contain  moreover  an  assessment  of  values  and  damages. 
Hence  the  jury  are  sworn  to  answer  upon  oath  three 
questions.  1.  Does  the  defendant  detain  the  plaintiff's 
property  ?  If  so  then  2.  What  is  its  value  ?  and  3.  What 
damages  has  the  plaintiff  sustained  by  reason  of  its 
detention  ?  These  are  three  distinct  questions,  and  the 
answers  should  be  distinct.  Let  them  be  so  given,  and 
I  take  on  me  to  say,  that  all  the  difficulty  of  the  above 
case  will  vanish. 

The  language  of  the  declaration  in  affirming  the  deten- 
tion is  in  the  present  tense.  So  is  that  of  the  plea  of  non 
detinet.  But  as  one  is  filed  at  one  time,  and  the  other  a 
month  afterwards,  then  if  the  tempus  presens  be  understood 
as  of  the  day  on  which  they  are  respectively  filed,  both 
might  be  true,  and  there  would  be  no  affirmation  and 
denial  of  the  same  thing,  and  so  no  issue.  Hence  both 
must  be  referred  to  one  and  the  same  time,  and  as  the 
plaintiff'  must  have  a  subsisting  cause  of  action  when  he 
brings  the  suit,  the  time  so  referred  to  is  the  date  of  the 
writ.  The  verdict  too  speaks  in  the  present  tense :  but 
the  verdict  is  to  be  understood  in  a  sense  responsive  to  the 
issue,  so  that,  if  for  the  plaintiff,  it  affirms  what  he  had 
averred,  and  if  for  the  defendant  it  denies  what  he  had 
denied.  The  verdict  for  the  plaintiff  therefore,  which 
finds  that  '  the  defendant  does  detain,  in  manner  and  form 
&c.'  means  that  he  did  detain  at  the  date  of  the  writ. 

But  as  to  the  other  two  matters,  which  are  not  put  in 
the  issue,  there  is  no  such  artificial  meaning  attributed  to 
the  words  of  the  jury.  The  present  tense,  in  which  they 
are  spoken,  is  the  actual  time  of  the  rendition  of  the 
verdict.  Hence  the  confusion  of  ideas  produced  by  find- 
ing 'Negro  Harry  of  the  value  of  &.">00,'  as  if  these 
words  were    added    by    way    of  description,    and   pcrad- 


THE    PRINCIPLES    OF    PLEADING.  81 

venture  to  identify  the  slave  with  one  so  described  in  the 
declaration. 

Now  let  us  see  how  the  verdict  would  stand  in  proper 
form.  '  The  jury,'  says  the  record,  '  on  their  oath,  do  say 
that  the  said  defendant  does  detain  the  slaves  in  the  declar- 
ation mentioned  in  manner  and  form  as  the  plaintiff  in  his 
declaration  has  alleged  ;  and  the  jury  do  further  say  that 
the  slave  Harry   is  of  the  value  of  the 

slave  Tom  is  of  the  value  of  and  the  slave 

Sarah  is  of  the  value   of  :  and  they  do 

farther  assess  the  damages  of  the  plaintiff  by  reason  of 
the  detention  of  the  slaves  to 

Now  the  thing  to  be  done  is  to  fill  these  blanks.  Let  it 
be  supposed  then  that  the  jury  cannot  write,  and  coming 
in  to  render  their  verdict,  and  not  knowing  the  form,  to 
wait,  as  in  criminal  cases,  to  be  questioned.  They  are 
accordingly  questioned  thus.  '  How  say  you  gentlemen  ? 
Did  the  defendant  on  the  day  of  the  date  of  this  writ 
detain  the  slaves  in  the  declaration  mentioned,  and  were 
they,  on  that  day  the  property  of  the  plaintiff  ?  '  '  Yes.' 
(The  slave  Harry,  at  the  commencement  of  the  action, 
was  a  boy  worth  $200.  He  is  now  a  man  worth  $500.) 
'  How  say  you  ?  What  is  now,  at  this  moment  the  value 
of  the  slave  Harry  ? '  The  Court  of  Appeals  have  said 
(1.  Hen.  and  Munf.  54.)  that  the  jury  ought  to  answer 
'  $500.'  '  How  say  you  gentlemen  ?  What  is  now,  at 
this  day,  the  value  of  the  slave  Tom  ? '  (Tom  when  the 
suit  was  brought  was  in  the  prime  of  life  and  worth  $500. 
He  is  now  older  and  infirm,  and  worth  only  $100.)  On 
the  authority  of  the  same  case,  the  jury  ought  to  say 
'  $100.'  '  How  say  you  ?  What  is  the  value  of  the  slave 
Sarah?'  (Sarah,  when  the  suit  was  brought  was  worth 
$100.  She  grew  up  and  was  worth  $250.  She  fell  into 
a  decline  and  yesterday  was  worth,  at  most,  one  cent.) 
Had    the  case   been  tried   yesterday,  the  jury,   on   the 


82  THE    PRINCIPLES    OF    PLEADING. 

authority  of  the  same  case,  ought  to  have  said  'one  Cent.' 
She  died  last  night.  '  What  is  her  value,  now  at  this 
moment  ? '  Is  there  any  need  of  authority  to  tell  the  jury 
that  their  answer  should  be  that  '  she  is  now  of  no  value  ?  ' 
Could  any  authority  bind  men  of  conscience  to  answer,  on 
their  oaths,  in  any  other  way  ? 

But  the  gentlemen  whose  opinions  we  are  considering 
are  puzzled  with  the  case  of  a  slave  who  may  have  lost 
his  life  in  consequence  of  his  being  in  the  defendant's 
service.  Suppose  that  case.  Let  it  be  Harry  who  is 
dead,  and  that  he  was  employed  as  a  seaman,  wrecked  and 
drowned.  Does  the  manner  of  his  death  add  to  his  value, 
or  justify  a  jury  in  saying  on  oath  that  he  is  worth  any 
thing  ?  Clearly  not.  But  will  it  not  justify  the  jury  in 
saying  that  the  plaintiff  has  sustained  damage  by  reason 
of  his  being  kept  in  the  defendant's  service,  or,  as  the  law 
expresses  it,  by  reason  of  his  detention  by  the  defendant 
to  the  amount  of  $500,  over  and  above  his  hires  to  the 
day  of  his  death  ?  Will  any  thing  short  of  that  be  the 
whole  truth  ? 

But  the  question  of  death  is  not  put  in  issue.  But  is 
not  life  an  element  of  value  ?  Health  surely  is.  Then 
let  it  be  supposed,  that  Harry  was  not  drowned,  but  only 
wrecked,  frost-bitten,  lopped  of  his  limbs  by  the  surgeons, 
a  cripple  and  a  burden.  Shall  the  jury  not  give  damages 
for  this?  Or  shall  they  instead,  assess  his  value  as  if  all 
this  had  not  happened,  give  nothing  by  way  of  damages 
for  the  injury,  and  let  the  defendant  escape  the  payment 
by  delivering  up  the  truncated  carcass  to  the  owner?  This 
would  be  as  unjust  to  the  plaintiff  as  the  proceeding  in 
the  other  case  to  the  defendant. 

But  in  case  of  the  negro  who  lost  his  life  in  the  service 
of  the  defendant,  he  may  plead  the  death  as  to  all  but  the 
hires,  and  the  plaintiff  may  recover  the  value  in  a  new 
action   for  damages.     But  why  a  new  action?     Why  a 


THE    PRINCIPLES    OF    PLEADING.  83 

new  jury  ?  "Will  not  the  question  before  them  be  the 
same  as  that  before  the  jury  already  impanelled ;  to  wit 
the  damage  consequent  on  the  fact  that  the  defendant  had 
kept  the  slave  of  the  plaintiff  improperly  in  his  employment? 
Let  us  free  our  minds  of  the  horrid  notion  of  suing  for 
the  value  of  a  man's  life.  Let  us  take  a  piece  of  furniture  ; 
a  clock  for  example.  When  the  suit  was  brought  it  was 
new.  The  comfort  of  it  in  the  house  is  worth  $5.  per 
annum.  It  is  injured  in  the  defendant's  service  with  or 
without  his  fault,  till  its  value  is  reduced  from  $100.  to 
S50.  Shall  you  not  add  $50.  to  the  estimate  of  damages  ? 
His  house  has  been  burnt  down  last  night,  and  the  clock 
with  it.  Shall  you  not  add  this  to  your  estimate  of  wear 
and  tear  ? 

Now  the  commentator  says  that  the  defendant  should 
plead  the  destruction  in  bar  of  the  recovery  of  the  value, 
and  only  pay  damages  at  the  rate  of  $5.  per  annum  ;  and 
that  the  plaintiff  must  recover  the  value  in  a  new  action. 
For  what?  Because  the  defendant  had  kept  the  plaintiff ' s 
clock  in  his  house  whereby  it  was  burned.  Is  not  this  only 
a  more  detailed  form  of  stating  the  fact  of  detention,  the 
damages  for  which  he  has  already  recovered  ? 

No  one  who  will  consider  the  relation  in  which  I  stand 
to  two  of  the  gentlemen  whose  opinions  I  have  been 
discussing,  can  suppose  that  these  remarks  are  made  in 
any  but  the  kindest  and  most  respectful  spirit.  It  is  the 
high  and  deserved  reputation  of  these  gentlemen,  and 
their  very  distinguished  ability,  that  give  importance  to  the 
example  of  their  obvious  mistake.  When  such  men  make 
blunders,  the  cause  is  worth  inquiring  after.  What  was  it 
in  this  case  ?  Simply  a  want  of  familiarity  with  records 
properly  drawn  up.  And  if  I  am  right,  as  I  cannot  doubt, 
and  if  I  have  been  enabled  to  see  through  the  difficulty 
which  so  perplexed  men  so  far  my  superiors,  it  is  because 
I  never  tried  an  action  of  detinue  in  which  the  verdict, 


84  THE    PRINCIPLES    OF    PLEADING. 

if  for  the  plaintiff,  was  not  read  to  me  the  next  day,  in  the 
very  form  I  have  given  above.  The  proposition,  that  the 
verdict  is  always  in  the  very  language  of  the  traverse, 
with  or  without  the  word  '  not,'  according  as  the  jury  find 
for  one  or  the  other  party,  would  prevent  innumerable 
blunders.  It  would  have  prevented  our  Court  of  Appeals 
from  holding,  as  they  are  understood  to  hold,  that  on  the 
plea  of  payment,  to  debt  on  bond,  no  word  of  evidence 
being  offered  for  the  defendant,  the  jury  must  find  for 
him,  because  of  variance  between  the  declaration  and  the 
bond,  which  the  plaintiff  is  required  to  produce  in  evidence, 
though  it  is  not  put  in  issue,  but  admitted  by  the  plea. 

For  the  present  I  suspend  these  remarks  here.  As  to 
attempting  any  account  of  the  law  of  pleading,  as  it  may 
be  supposed  to  stand  in  Virginia,  I  would  as  soon  give  a 
map  of  a  drifting  cloud-rack.  But  I  propose  to  follow 
out  the  principles  I  have  laid  down,  into  some  of  the 
details,  and  to  show  what  the  law  of  pleading,  should  be, 
and  must  be,  unless,  as  I  have  already  said,  our  people 
make  up  their  minds,  to  exchange  the  regulated  authority 
of  a  common  law  judge,  for  the  arbitrary  decrees  of  a 
Roman  Praetor,  or  a  Turkish  Cadi. 


TIIE    PRINCIPLES    OF    PLEADING.  85 


In  the  commencement  of  this  little  work,  it  was  my 
purpose  to  avail  myself  of  the  method  of  Stephen  in  his 
admirable  treatise  on  pleading.  I  have  been  diverted 
from  my  plan,  by  what  I  deemed  a  necessary  attempt  to 
vindicate  the  Common  Law,  on  this  subject,  from  the 
censure  to  which  it  has  been  exposed  by  the  loose  practice 
prevalent  in  Virginia.  '  Leaving  this  keen  encounter,'  I 
now  propose  to  'fall  into  a  slower  method,'  and  shall 
endeavor  to  present  the  subject  in  the  same  order  in 
which  it  is  set  forth  in  the  pages  of  Stephen. 

Many  of  his  introductory  remarks  are  wholly  inappli- 
cable here ;  but  it  is  hoped  that  the  reader  will  see,  in 
what  I  have  said  in  the  outset,  something  that  may  supply 
their  place.  Very  little  remains  to  be  added  in  order 
to  convey  a  sufficiently  distinct  idea  of  the  nature  of 
pleading,  in  cases  wherein  it  takes  its  direct  and  simple 
course. 

In  the  foregoing  record  it  will  be  seen,  that  the  plead- 
ings are  all  by  way  of  confession  and  avoidance,  ending 
in  a  demurrer  to  the  surrejoinder.  Such  pleadings  are  so 
named,  because  the  party  so  pleading  declines  to  call  upon 
his  adversary  for  proof  of  his  allegation,  and  takes  upon 
himself  to  prove  some  new  matter.  Thus  if,  instead  of 
demurring,  the  defendant  Roe  had  taken  issue  on  the 
surrejoinder,  there  would  have  been  no  question  before 
the  Jury  about  the  bond,  the  release,  the  condition  thereto 
appended,  or  the  paper  obtained  by  Roe  from  Jane  Styles. 
All  these  matters  have  been  successively  admitted,  and 
put  out  of  the  way,  as  belonging  to  the  undisjnited  facts 
of  the  case.  The  one  disputed  fact,  (the  marriage  of 
Jane  Styles,)  alone  remains  to  be  inquired  into  by  the 
Jury ;  and,  the  defendant  having  denied  that,  the  plaintiif 
must  prove  it.  If  he  does  so,  the  verdict  will  be  for  him ; 
if  not,  for  the  defendant. 
8 


86  THE   PRINCIPLES    OF   PLEADING. 

But  any  one  of  these  facts  so  admitted  might  have  been 
denied,  and  so  put  in  issue  ;  in  which  case,  the  onus  pro- 
bandi  would  have  fallen  on  the  party  alleging  it ;  and  the 
verdict  would  be  rendered  against  him,  if  he  failed  to 
prove  it.  Thus  the  defendant  might  have  denied  the  ex- 
ecution of  the  bond,  which  he  would  have  done  in  this 
simple  form,  which  is  called  the  general  issue  :  * 

'  And  the  said  Richard  Roe  says  that  the  said  supposed 
writing  obligatory  is  not  his  deed,  and  of  this  he  puts 
himself  upon  the  Country.' 

So  the  plaintiff  might  have  denied  the  release,  in  the 
form  appropriate  to  replications  by  way  of  traverse : 

'And  the  said  John  Doe  says  that  the  said  supposed 
deed  of  release  in  the  plea  of  the  defendant  set  forth  is 
not  his  deed ;  and  this  he  prays  may  be  enquired  of  by  the 
Country.' 

The  defendant  might  have  traversed,  or  denied  the  al- 
leged condition  to  the  release,  thus  : 

'  The  said  Richard  Roe  says  that  at  the  time  of  the 
delivery  of  the  said  deed  of  release  to  the  said  John  Denn, 
the  condition  by  the  said  John  Doe  in  his  plea  last  pleaded 
set  forth  was  not  thereto  underwritten,  in  manner  and 
form  as  the  plaintiif  in  his  said  plea  has  alleged,  and  of 
this  he  puts  himself  on  the  Country.' 

So  finally  the  plaintiff  might  have  thus  denied  the  de- 
livery of  the  deed  of  Jane  Styles  to  John  Denn : 

'  And  the  said  John  Doe  says  that  the  said  Richard 
Roe  did  not  deliver  to  the  said.  John  Denn  the  deed  of 
release  of  the  said  Jane  Styles,  in  the  plea  last  aforesaid 
of  the   said  Richard  set  forth,  in  manner  and  form  as  in 

*  It  will  be  seen  that  in  this,  and  all  the  subsequent  forms,  I  omit  all 
thai  I  think  should  be  regarded  as  superfluous.  I  do  not  advise  the 
pleader  i"  dispense  with  them.  Pie  should  add  what  is  called  'the 
.1.  fense'  with  its  '  when  &c.  where  &c.'  and  the  common  commence- 
iin nt.  which  are  the  same  in  all  cases.  I  only  wish  to  be  excused  from 
enveloping  in  them  the  simple  matters  that  1  wish  to  present. 


THE   PRINCIPLES    OP   PLEADING.  87 

the  same  is  alleged,  and  this  he  prays  may  be  enquired  of 
by  the  Country.' 

In  like  manner,  either  party,  at  any  stage  of  the  pro- 
ceeding, might  have  demurred  to  the  last  pleading  of  his 
adversary,  the  form  and  effect  of  the  demurrer  being,  in 
all  cases,  the  same.  "When  the  party  does  not  demur,  he 
is  understood  to  be  satisfied  of  the  sufficiency  of  such 
pleading,  and  is  sometimes  said  to  admit  it.  But  it  should 
be  borne  in  mind  that  although  the  party's  admissions  of 
fact,  concerning  which  he  knows  the  truth,  while  the 
Court  knows  nothing,  are  binding  on  him,  the  same  is  not 
true  of  his  admissions  of  Law,  of  which  he  knows  nothing 
and  the  Court  every  thing.  Hence  the  motion  in  arrest  of 
Judgment,  by  which,  as  the  Court  will  never  give  judg- 
ment contrary  to  law,  the  party  gets  all  the  advantage 
that  he  could  have  got  by  demurring  during  the  progress 
of  the  cause,  for  substantial  defects.  I  say  nothing  here 
of  demurrers  for  mere  formal  defects.  I  postpone  these 
until  I  shall  come  to  speak  of  cases  in  which  the  correc- 
tion of  such  defects  is  essential  to  the  purposes  of 
Justice. 

It  sometimes  happens  that  the  even  progress  of  a  cause 
is  interrupted  by  the  occurrence  of  some  event  pendente 
lite  of  sufficient  importance  to  decide  it.  This  is  to  be 
brought  to  the  notice  of  the  Court,  by  what  is  called  '  a 
plea  since  the  last  continuance,'  or  'puis  darreign  contin- 
uance^ Thus  suppose  that,  while  the  suit  is  going  on,  a 
sort  of  compromise  has  been  effected,  and  that  the  plaintiff 
notwithstanding  continues  to  press  the  case  to  judgment. 
The  defendant  thereupon  pleads  thus : 

'  The  said  Richard  Roe  says  that  after  the  last  contin- 
uance of  this  cause,  to  wit  on  the  first  day  of  May  1841, 
he  the  said  Richard  delivered  to  the  said  John  Doe  a  cer- 
tain horse  in  full  satisfaction  of  the  debt  in  the  declaration 
mentioned,  which  said  horse  the  said  John  Doe  then  and 


88  THE   PRINCIPLES    OF   PLEADING. 

there  accepted  in  full  satisfaction  of  the  said  debt ;  and 
this  he  is  ready  to  verify ;  wherefore  he  prays  judgment 
if  the  said  John  Doe  his  action  aforesaid  against  him  ought 
farther  to  have  and  maintain.' 

Of  this  plea  it  is  said  by  Stephen,  p.  89,  that  '  it  is 
always  pleaded  by  way  of  substitution  for  the  former  plea ; 
on  which  no  proceeding  is  afterwards  had.'  Thus  it  appears 
that  the  former  ground  of  defence  must  be  relinquished, 
and  the  plea  'puis  darreign  continuance'  is  therefore 
said  to  be  pleaded  '  relicta  verificatione '  of  the  former 
plea.  "Whether  this  would  be  the  case  with  us  remains  to 
be  decided.  It  would  seem  that  as,  by  our  Statute,  both 
pleas  might  have  been  pleaded  together  in  the  first  in- 
stance, there  can  be  no  good  reason  why  the  one  should 
supersede  the  other,  and  why  both  may  not  stand  together 
on  the  record  and  be  tried  together.  I  am  not  aware  of 
any  decision  on  the  point. 

Of  the  incidents  of  occasional  occurrence,  by  which  the 
progress  of  the  pleadings  is  sometimes  varied,  the  first 
mentioned  by  Stephen  is  the  demand  of  view  in  real  ac- 
tions. This,  with  us,  is  taken  away  by  Statute.  Its  use 
seems  to  have  been  to  enable  the  defendant  to  know  cer- 
tainly whether  the  land  demanded  by  the  plaintiff  is  land 
claimed  by  him.  If  he  found  it  not  to  be  so,  he  put  an 
end  to  the  action  by  entering  a  disclaimer.  The  same 
object  is  better  effected,  since  the  invention  of  the  compass, 
by  an  order  of  survey ;  which  being  complied  with,  the 
survey  is  returned  to  Court,  ajid  becomes  part  of  the 
record,  in  perpetuam  rei  memoriam. 

Voucher  is  another  proceeding  of  the  same  sort.  This  too 
was  peculiar  to  real  actions.  Its  use  was  to  enable  the 
vendee  of  a  doubtful  title,  when  sued  for  the  land  by  one 
claiming  it  by  title  paramount  to  that  of  the  vendor,  to 
Bummoa  the  vendor  to  defend  the  title  conveyed  and  war- 
ranted  by  him.     If  the  vendor  thus  summoned  failed  in 


THE    PRINCIPLES    OF    PLEADING.  89 

the  suit,  it  must  be  through  his  own  negligence  or  because 
his  title  was  actually  bad.  He  had  therefore  no  defence 
to  offer,  when  called  on  by  the  evicted  vendee  to  refund 
the  purchase  money.  Had  the  vendee  himself  conducted 
the  suit,  the  vendor  might  have  complained  that  the  de- 
fence was  weak,  negligent,  or  perhaps  collusive.  The 
voucher  took  away  all  pretexts  for  such  objections  to  the 
vendee's  demand,  and  hence  the  advantage  of  the  voucher. 
But  among  our  almost  nomadic  population,  it  might  be 
unjust  to  the  vendee  to  require  of  him  to  find  the  vendor, 
and  vouch  him  to  warranty ;  and  therefore  perhaps  it  was 
thought  better  to  leave  him  to  defend  the  suit  as  well  as 
he  could  in  the  first  place,  and  then,  in  his  action  against 
the  vendor,  to  show,  if  required  to  do  so,  that  his  defence 
had  been  conducted  bona  fide.  Hence  voucher  is  taken 
away  by  Statute,  but  the  vendee  is  still  at  liberty,  by  a 
proceeding  not  of  record,  but  in  pays,  to  notify  the  vendor 
of  the  suit,  and  invite  him  to  aid  in  the  defence  ;  but  he 
cannot  make  him  a  party  thereby,  nor  excuse  himself 
from  making  the  best  defence  in  his  power.  The  record 
shows  nothing  of  the  matter. 

The  reader  will  observe  in  the  foregoing  record  that  the 
bond  on  which  the  action  is  founded  is  first  described  by 
its  sum  and  date,  and  that  then  follow  the  words  '  to  the 
court  now  shown.'  This  is  called  making  profert,  and  is 
necessary  whenever  any  sealed  instrument  of  the  other 
party  is  pleaded.  It  is  also  sometimes  necessary  in  other 
cases  of  which  I  do  not  speak  here.  Whenever  these 
words  are  found  in  the  declaration,  they  give  the  adverse 
party  a  right  to  demand  an  inspection  of  such  paper.  This 
is  now  submitted  to  his  view.  Formerly,  when  he  could 
not  read,  he  inspected  it,  (if  we  may  so  say,)  by  having  it 
read  to  him,  and  hence  the  proceeding  was  called  oyer, 
from  the  Norman  French  word  signifying  '  to  hear.'  He 
demanded  to  hear  the  paper  read,  and,  as  read,  it  was 


90  THE    PRINCIPLES     OF    PLEADING. 

copied  down  into  the  record.  Now  he  reads  it  himself, 
and  prefixes  a  copy  of  it  to  his  plea.  Hence  it  is  some- 
times looked  on  as  a  part  of  the  plea.  But  it  is  not.  "  It 
becomes  a  part  of  the  pleading  in  which  profert  was  made, 
so  that  if  there  be  a  variance  between  the  writing,  as  de- 
scribed, and  the  copy  as  set  forth,  the  pleading  will  be 
condemned  on  demurrer  as  being  inconsistent  with  itself. 
In  the  eye  of  the  law  it  is,  as  if,  after  describing  the  paper, 
the  party  had  gone  on  to  say,  '  which  said  writing  obliga- 
tory is  in  the  words  and  figures  following  to  wit,'  and  then 
had  given  the  copy.  Now  if  the  description  give  one  date 
and  the  copy  another,  or  if  the  description  name  one  sum 
and  the  copy  another,  the  Court  cannot  know  which  of 
two  bonds  is  sued  on,  or  what  judgment  to  give.  Hence 
the  readiest  way  to  take  advantage  of  variance  is  by  oyer 
and  demurrer.  If  indeed  the  defendant  finds  no  variance 
he  makes  no  use  of  the  oyer,  but  pleads  as  if  he  had  not 
demanded  it. 

Another  use  of  oyer  is  to  obtain  the  benefit  of  any  de- 
fence which  may  appear  on  the  paper  itself,  but  is  not 
expressed  in  the  part  of  it  set  forth  by  the  adversary  as 
his  ground  of  action.  In  such  case  the  oyer,  becoming 
part  of  the  declaration,  may  afford  the  defendant  some- 
times matter  for  a  plea,  sometimes  for  demurrer.  A  sin- 
gle case  may  be  made  to  furnish  an  example  of  each. 

B.  executes  to  A.  a  bond  for  £200  conditioned  to  be  void 
on  the  payment  of  £100  on  or  before  a  certain  day.  The 
day  is  past,  and  the  money  has  been  paid.  Nevertheless, 
A.  brings  suit.  His  declaration  says  nothing  of  the  condi- 
tion, but  merely  charges  that  B.  by  the  bond  '  acknowl- 
edged himself  to  be  indebted  in  the  sum  of  £200.'  Now 
it  is  no  defence  to  this  to  say  merely  that  B.  had  paid 
£100.  If  A.  had  set  forth  the  whole  bond,  condition  and 
all,  in  bis  declaration,  this  plea  would  be  sufficient.  But 
he   is  not  bound  to  do  this,  in  the  first  instance,  and  so  B. 


TIIE    PRINCIPLES    OF    PLEADING.  91 

by  craving  oyer  forces  him  to  disclose  that  part  of  the  in- 
strument which  he  would  gladly  suppress.  The  record 
accordingly  takes  this  form  : 

'  The  said  B.  craves  oyer  of  the  said  writing  obligatory, 
and  it  is  read  to  him,  &c.  He  also  craves  oyer  of  the 
condition  of  the  said  writing  and  it  is  read  to  him  as  fol- 
lows. '  The  condition  of  the  above  obligation  is  such  that 
if  the  said  B.  on  or  before  the  first  clay  of  June  1840,  shall 
pay  to  the  said  A.  the  sum  of  £100  then  the  above  obli- 
gation is  to  be  void.'  ' 

The  oyer  having  thus  appended  the  condition  to  the 
declaration,  the  case  is  prepared  for  the  following  plea : 

'  And  thereupon  the  said  B.  says  that  on  the  said  first 
day  of  June  1840,  he  the  said  B.  paid  to  the  said  A.  the 
said  sum  of  £100  in  the  condition  mentioned,  and  this  he 
is  ready  to  verify.  Whei'efore  he  prays  judgment  if  the 
said  A.  his  action  against  him  ought  to  have  and  maintain.' 

Now  whether  the  truth  of  this  plea  be  admitted  by 
demurrer,  or  established  by  verdict,  every  one  must  see 
that  the  judgment  prayed  by  the  defendant  will  be  right, 
and  the  plea  is  therefore  good.     So  much  for  the  plea. 

Now  let  it  be  supposed  that  the  plaintiff  brought  his 
action  too  soon,  and  that  the  first  day  of  June  1840,  has 
not  yet  arrived.  The  bond  and  condition  being  set  out  on 
oyer,  the  defendant  demurs  as  follows: 

'And  thereupon  the  said  B.  prays  judgment  of  the 
Court  if  by  any  thing  by  the  plaintiff  in  his  declaration 
alleged  he  ought  to  have  and  maintain  his  action  afore- 
said.' 

Here  again  the  judgment  prayed  is  obviously  right  as 
the  conclusion  of  Law  from  the  facts  already  in  the  record. 
There  is  no  need  for  the  defendant  to  add  any  thing.  For 
the  course  of  the  Calendar  is  matter  of  Law,  and  it  is 
therefore  matter  of  Law  that  the  first  day  of  June  1840, 
is  a  day  yet  to  come,  until  which  the  plaintiff  has  no  right 


92  THE    PRINCIPLES    OP    PLEADING. 

of  action.     The  demurrer  therefore  decides  the  case  for 
the  defendant. 

I  am  sorry  to  have  occasion  here  to  speak  of  a  matter, 
which  is  involved  in  some  difficulty,  by,  what  I  have  long 
deemed,  a  somewhat  rash  innovation  of  the  English  Courts, 
about  the  middle  of  the  last  century.  The  necessity  of 
making  profert  of  sealed  instruments,  in  actions  at  Law, 
left  the  party  without  remedy,  except  in  Equity,  when 
such  instrument  was  destroyed,  lost,  or  in  the  hands  of  the 
other  party.  The  time  I  speak  of  was  one  of  those  sea- 
sons of  jealousy  of  Courts  of  Equity,  to  which  the 
English  Common  law  courts  have  been  periodically  sub- 
ject. They  seemed  unwilling  to  submit  to  the  reproach, 
that  there  should  be  any  legal  right  without  a  remedy  at 
Law.  In  this  mood,  they  resolved,  that  in  all  such  cases 
the  plaintiff,  instead  of  making  profert,  might  say  by  way 
of  excuse  and  substitute,  that  the  bond,  on  which  he  sued, 
was  destroyed,  lost,  or  in  the  defendant's  hands.  This 
seemed  to  answer  every  purpose,  until  it  was  observed, 
that,  inasmuch  as  this  allegation  was  made  under  no  re- 
sponsibility, cases  might  arise,  in  which  the  plaintiff  might 
find  it  to  his  advantage,  to  withhold  the  bond  from  oyer, 
which  he  might  do  by  making  this  suggestion.  "What  was 
to  be  done  in  that  case  ?  The  answer  was,  that  the  alle- 
gation might  be  denied.  How  ?  By  plea.  —  But  what 
sort  of  plea  ?  This  question  has  not  been  answered.  Every 
affirmative  plea  must  have  its  prayer  of  judgment,  and  the 
judgment  so  prayed  must  be  the  legitimate  conclusion  of 
law  from  the  state  of  facts,  which  would  stand  admitted 
by  a  demurrer  to  the  plea,  or  established  by  a  verdict 
finding  it  to  be  true.  Now  suppose  the  plaintiff,  believing 
the  bond  to  be  in  the  hands  of  the  defendant,  should  make 
that  suggestion.  The  defendant  denies  it,  and  issue  being 
joined  thereon,  the  defendant,  who  all  the  time  knows 
where  the  bond  is,  proves  that  a  third  person  has  it.    The 


TIIE    TRINCirLES    OF    PLEADING.  93 

jury  accordingly  find  for  the  defendant.  Will  the  Court 
thereupon  say,  that  the  plaintiff's  action  must  be  barred, 
and  the  debt  forever  lost  ?  Such,  I  take  it,  is  not  the 
conclusion  the  Law  deduces  from  the  facts  in  the  rec- 
ord. It  would  indeed  be  a  curious  one,  and  as  palpable 
a  non  sequitur  as  can  be  conceived.  So  even  if  it  should 
be  suggested,  that  the  bond  was  lost  or  destroyed,  and 
proved  at  the  trial  to  be  in  the  plaintiff's  own  hands,  I 
must  profess  myself  ignorant  of  any  law,  which,  for  such 
conduct,  however  unfair,  prescribes  the  precise  penalty  of 
a  loss  of  the  debt.  If  there  be  any  such  law,  it  must  have 
been  made  since  this  mode  of  proceeding  was  introduced. 
If  so,  who  made  it,  and  when  ?  The  only  inference,  as  I 
conceive,  that  the  known  law  of  the  land  deduces  from 
such  a  state  of  facts,  is  that  the  plaintiff  should  have  made 
profert,  and  that  the  defendant  ought  to  have  oyer.  The 
want  of  oyer  is  the  defendant's  only  grievance,  and  the 
only  thing  he  should  seek  by  the  plea  is  oyer.  To  entitle 
himself  to  that,  ought  not  his  plea  to  show  affirmatively 
that  the  bond  is  in  the  power  of  the  plaintiff,  and  so  con- 
clude with  a  prayer  of  oyer  ?  So  it  would  seem  to  me, 
unless  his  plea  will  entitle  him  to  a  judgment  for  that,  to 
which  the  facts  stated  in  his  plea  give  him  no  right  accord- 
ing to  any  known  law.  There  are  three  things,  one  of 
which  the  plaintiff  must  suggest,  to  excuse  the  want  of 
profert.  Merely  to  deny  that  one  of  them,  which,  in  his 
ignorance  of  what  has  become  of  the  bond,  he  has  suggested, 
by  conjecture,  would  never  do.  If  so,  the  suggestion  of 
the  destruction  of  the  bond  might  be  disproved  by  its  actual 
production  in  Court  by  the  defendant  himself,  who  had 
obtained  it  surreptitiously.  Should  he  defeat  the  plaintiff's 
action,  or  even  justify  his  complaint  of  want  of  profert  by 
thus  proving  the  cause  of  action,  and  also  by  proving  that 
the  plaintiff  could  not  have  made  profert  ?  Hence  I  repeat 
that  the  only  rational  account  of  such  a  plea  is,  that  it 


94  THE    PRINCIPLES    OF    PLEADING. 

should  allege  affirmatively  that  the  bond  ispenes  querentem, 
and  thereupon  crave  oyer.  If  an  issue  were  made  up  on 
this  plea,  he  ought  to  have  oyer  if  he  proves  it.  If  not, 
he  should  plead  without  it,  under  a  judgment  of  respondeat 
ouster* 

Let  it  not  be  said  that  the  plaintiff,  if  the  matter 
be  pleaded  in  bar,  may  escape  the  judgment  by  suffering 
a  nonsuit.  This  is  a  petitio  principii :  for  it  never  was 
known  that  the  plaintiff  should  be  driven  to  a  nonsuit  to 
avoid  a  judgment  not  consonant  to  the  conclusion  of  law 
from  the  facts  of  his  case. 

Of  a  like  nature  with  the  issue  and  judgment,  which  I 
conceive  to  be  proper  in  this  case,  is  the  proceeding  by 
way  of  counterplea  or  demurrer  to  the  prayer  of  oyer.  As 
an  example  of  the  first,  we  may  suppose  the  loss  or  destruc- 
tion of  the  bond  between  profert  and  oyer.  The  fact 
should  be  pleaded  with  a  prayer  of  judgment  whether  the 
defendant  should  have  oyer.  A  case  for  demurrer  would 
be  a  prayer  of  oyer  of  a  writing  not  under  seal,  or  a 
writing  under  seal  but  that  of  a  third  person.  Here  the 
prayer  of  judgment  should  be  the  same,  and  the  judgment 
should  be  that  the  defendant  should  have  oyer,  or  that  he 
should  plead  without  it. 

I  now  proceed  to  consider  the  Rules  of  pleading,  their 
reasons,  and  objects. 

I  have  already  said  that  the  great  use  and  end  of  plead- 
ing is  to  ascertain  the  disputed  and  important  facts  of  the 
case  by  verdict  of  a  Jury.  To  do  this  the  undisputed  are 
separated  from  the  disputed  by  permitting  the  parties  to 
speak  for  themselves.  The  unimportant  are  separated 
from  the  important  by  the  Court.     The  residuum  consti- 

*  It  is  worthy  of  observation  that  the  Supreme  Court  of  Missouri, 
Boon  after  the  organization  of  the  State,  refused  to  he  bound  by  this  in- 
novation on  the  Common  Law,  and  confined  the  obligee  of  a  lost  bond 
to  Us  remedy  in  Equity. 


THE    PRINCIPLES    OP    PLEADING.  95 

tutes  the  issue,  which  is  to  be  joined  on  some  important 
fact,  which  being  disputed,  is  averred  by  the  one  party  and 
denied  by  tbe  other.  It  follows  that  the  issue  should  be, 
in  the  language  of  the  Law,  material  :  that  is  that  it 
should  be  taken  on  some  point  of  sufficient  importance,  to 
make  the  decision  of  the  case  depend  on  the  truth  or  false- 
hood of  the  fact  so  alleged  and  denied.  The  record  may 
contain  many  undisputed  facts,  and  yet  the  whole  together 
may  not  form  an  adequate  foundation  for  a  judgment, 
while  some  additional  fact  is  suggested  by  either  party  the 
truth  of  which  yet  remains  doubtful.  Thus  in  the  above 
case  of  Doe  vs.  Roe,  the  defendant  by  his  plea  admits  the 
bond,  and  this  admission,  if  standing  alone,  would  estab- 
lish a  fact  sufficient  to  entitle  the  plaintiff  to  judgment. 
But  he  couples  this  admission  with  the  allegation  of 
the  release,  and  no  judgment  can  be  given  until  the  plain- 
tiff answers  to  that  matter.  He  answers  and  admits  the 
release.  We  have  now  two  facts  in  the  record  sufficient 
to  entitle  the  defendant  to  judgment  if  they  stood  alone. 
But  the  plaintiff,  in  turn,  couples  his  admission  with  the 
allegation  of  a  condition  to  the  deed  of  release.  No  judg- 
ment therefore  can  be  given  until  the  defendant  shall 
answer  this  new  allegation.  This  he  does,  admitting  the 
condition  and  alleging  performance.  The  record  now 
contains  three  facts,  the  result  of  which,  if  it  stopped  there, 
would  be  judgment  for  the  plaintiff,  but  before  he  can  have 
judgment  he  must  again  confess  or  deny  the  alleged  per- 
formance. His  surrejoinder  adds  a  fourth  fact,  which 
would  now  decide  the  case  in  favor  of  the  defendant,  but 
that  the  plaintiff  now  avers  the  marriage  of  Jane  Styles, 
and  to  this  averment  the  defendant  in  his  turn  must 
answer. 

Thus  we  see  throughout  that  the  admitted  facts  are 
always  sufficient  to  entitle  the  last  pleader  to  judgment  if 
the  admission  were   unqualified.     But  it  is  in  every  in- 


9G  THE    PRINCIPLES    OF    PLEADING. 

stance  qualified  by  the  allegation  of  some  new  fact  which, 
if  true,  would  decide  the  case  the  other  way ;  and  there- 
fore it  is  this  quality  in  the  new  fact  so  alleged,  which 
alone  prevents  judgment  on  the  admission.  Hence  if  the 
new  fact  so  alleged  were  wholly  immaterial  it  would  not 
prevent  the  Judgment.  All  this  must  be  so  as  the  neces- 
sary consequence  that  the  Judgment  is  the  conclusion  of 
Law  from  all  the  established  facts  in  the  record.  The 
party  against  whom  the  immaterial  fact  is  alleged,  has  but 
to  admit  it  by  demurrer,  and  then  all  the  facts  will  be 
established,  and  the  case  ready  for  judgment,  which  will 
of  course  be  the  same  as  if  the  immaterial  fact  had  not 
been  alleged. 

In  deciding  this  supposed  demurrer,  the  Court  decides 
on  the  materiality  of  the  fact  alleged.  If  it  be  immaterial, 
judgment  will  be  given  for  the  demurrant  on  the  matter 
confessed.  If  material,  then  Judgment  will  be  given  against 
him  on  his  confession,  unless,  by  the  indulgence  of  the 
Court,  he  retracts  it,  by  withdrawing  his  demurrer,  and 
either  denies  the  fact,  or,  again  confessing  it,  couples  the 
confession  with  some  new  fact  by  way  of  avoidance. 

So  far  we  have  spoken  of  immaterial  avoidances.  The 
case  of  an  immaterial  traverse  is  yet  plainer.  As  the  party 
is  always  considered  as  confessing  all  that  he  does  not 
deny,  it  is  obvious  that  if  he  confines  his  denial  to  some 
matter  of  no  consequence,  and  confesses  the  rest,  Judgment 
must  be  given  against  him.  This  again  is  done  on  demur- 
rer, by  which  the  demurrant  declines  insisting  on  that 
trivial  matter,  but  demands  Judgment  on  the  material  fact 
confessed. 

It  is  obvious,  that  if,  in  either  case,  instead  of  a  demur- 
rer, an  issue  of  fact  should  be  joined  on  such  immaterial 
allegation  or  traverse,  the  trial  of  it  would  be  a  needless 
expense  and  waste  of  time.  The  ascertainment  of  the 
fact  would  be  of  no  use.     The  fact  itself  is  of  no  value  as 


THE    PRINCIPLES    OF    PLEADING.  97 

an  element  in  the  Judgment.  Whether  confessed  by  a 
demurrer,  or  found  by  a  Jury,  it  is  but  the  same  fact,  and 
if  no  conclusion  of  Law  can  be  deduced  from  it  in  the  one 
case,  so  can  none  in  the  other.  Hence  it  is  indispensable 
that  every  plea  be  material. 

The  necessity  for  this  rule,  it  will  be  seen,  inheres  in 
the  very  nature  of  the  thing.  It  is  not  so  much  a  rule  as  a 
principle  which  could  not  be  otherwise  without  overturning 
the  whole  system. 

Somewhat  of  the  same  nature  is  the  principle  which 
requires  that  every  plea  be  certain.  This  word,  in  the 
sense  in  which  it  is  here  used,  means  definite  — precise  — 
'  tJiat  day '  — '  that  place '  — '  that  person '  — '  that  thing 
—  and  no  other '  — '  that  sum  of  money '  — '  that  quantity 
and  no  other?  Thus  understood,  certainty  is,  in  some 
particulars,  as.  indispensable  as  materiality,  and  that,  not 
in  virtue  of  any  arbitrary  rule,  but  of  the  nature  of  the 
thing.  To  show  this  let  me  remind  the  reader  that  every 
demurrer  when  drawn  out  in  full  form  declares  that  the 
demurrant  (e.  g.  the  defendant)  '  is  not  bound  by  Law  to 
answer  the  declaration.'  Now  the  test  of  his  obligation 
to  do  this,  when  he  demurs  for  matter  of  substance,  is  the 
goodness  or  badness  of  the  Judgment  which  would  be 
entered  if  he  did  not  answer.  Thus  if  the  allegation  of 
the  declaration  be  such  as  would  not  entitle  the  plaintiff  to 
any  judgment,  then  whatever  judgment  the  plaintiff  may 
take  will  be  reversed  as  erroneous.  This  is  the  obvious 
principle  of  demurrers  for  want  of  materiality.  The 
same  is  often  true  where  there  is  a  want  of  certainty.  In 
an  action  of  debt,  if  the  sum  is  not  set  down  in  the  descrip- 
tion of  the  bond,  a  Judgment  for  any  sum  whatever  will 
be  erroneous,  although  a  particular  sum  be  demanded.* 

*   The  converse  of  this  case,  that  is  a  judgment  by  default  for  a 
particular  sum,  when  no  sum  had  been  demanded,  although  a  sum  be 
mentioned  in  the  recital  of  the  bond,  would  be  a  case  of  irregularity. 
9 


98  THE    PRINCIPLES    OF    PLEADING. 

So  if  the  thing  demanded  be  not  described  as  particularly 
and  precisely  as  the  law  requires,  no  judgment  can  be 
given  for  it.  Thus,  in  detinue  for  a  slave,  the  law 
requires  that  he  be  designated  by  name.  If  he  be  not 
named  in  the  declaration,  a  judgment  that  the  plaintiff 
recover  the  slave  in  the  declaration  mentioned  will  be  a 
mere  blank.  If  the  Clerk  takes  upon  himself  to  enter  it 
for  any  certain  slave  by  name,  it  will  be  irregular,  as  not 
being  the  Judgment  prayed,  and  erroneous,  as  not  being 
warranted  by  the  allegations  in  the  declaration,  which  the 
silence  of  the  defendant  does  but  admit  as  there  stated, 
and  not  otherwise.  What  need  is  there  then  that  the 
defendant  should  answer  ?  No  harm  can  come  of  his 
silence,  for  whatever  judgment  is  had  against  him  must  be 
set  aside  as  irregular  or  reversed  as  erroneous. 

In  this  view  of  certainty  then,  the  rule  which  requires 
it  is  of  the  very  fundamentals  of  the  system,  and  cannot 
be  dispensed  with  without  upturning  the  whole.  In  all 
such  cases  as  I  have  supposed  the  want  of  certainty  is  a 
substantial  defect,  as  much  as  the  want  of  materiality. 
But  it  is  required  in  many  particulars  in  which  it  is  of 
doubtful  importance,  and  in  all  such  the  rule  is  more  or 
less  arbitrary.  We  shall  speak  of  these  in  detail  hereafter, 
and  I  will  endeavor  to  point  out  those  in  which  I  conceive 
it  may  be  dispensed  with  as  a  superfluous  and  vexatious 
nicety. 

A  third  property  which  every  pleading  ought  to  possess 
is  singleness.  The  rule  which  requires  this  is  in  some 
measure  arbitrary,  and  takes  its  rise  in  considerations  of 
convenience.  The  Jury,  being  taken  much  at  random 
from  the  mass  of  the  community,  arc  commonly  illiterate, 

The  Bilence  of  the  defendant  entitles  the  plaintiff  to  Judgment  for  the 
sum  demanded,  which  will  stand,  if  not  reversed  for  error.  But  a 
Judgmenl  for  a  sum,  demanded,  though  regular,  will  he  erroneous  if  the 
facts  set  forth  do  not,  in  Law,  give  a  legal  claim  to  that  sum. 


THE    PRINCIPLES    OP    PLEADING.  99 

and  rarely  endowed  with  much  acuteness  or  discrimination. 
It  is  indispensable  therefore  to  the  excellence  of  the 
system  that  their  task  be  simple.  In  general  it  is  so,  and 
it  is  only  because  they  mistake  their  function,  that  we  so 
often  find  them  perplexed  and  at  a  loss  to  know  how  to 
decide.  When,  by  a  strict  adherence  to  the  rules  of 
pleading,  an  issue  is  made  up  on  a  simple  point  of  fact,  it 
will  rarely  happen  that  the.re,  can  be  any  difficulty  in 
saying  whether  tk^(  fae,,t  h&i,  been  proved  or  not  proved. 
Let  the  Jury,  understand  that  this  is  all  they  lrive  to  say, 
and  that  this,  is  to  be  done  by  a  verdict  for  him  wbo  has 
affirmed  iC  he  proves,  and  for  the  other  party  if  satisfaey 
tory  proof  is  n,ot  kjyen,  and  each Avror  /  will,  .be -at  once 
prepared  to  give  his  verdict  one  way  or  the  other.  In 
this  is  the  great  excellence  of  Jury  trial.  Hence  the 
simplicity  which  renders  the  Juror's  task  thus  easy  ought 
to  be  carefully  preserved. 

It  is  principally  with  this  view,  as  I  conceive,  that  the 
law  requires  singleness  in  every  pleading.  At  first  the 
defendant  was  strictly  confined  to  one  defence.  Now  he 
is  allowed  to  offer  more  than  one,  but  the  law  requiring 
singleness  still  prevails  so  far  that  he  is  not  allowed  to 
introduce  any  two  defences  into  the  same  plea.  By  doing 
this  the  Jury  might  be  often  puzzled  to  know  what  verdict 
to  return,  and  the  verdict  returned  by  them  might  often 
be  one  in  which  the  court  would  be  at  a  loss  to  know  what 
Judgment  to  render.  These  three  characteristics,  of 
materiality,  certainty,  and  singleness,  are  required  in  every 
pleading,  in  order  to  the  production  of  an  issue  possessing 
the  same  qualities.  For  the  issue  being  made  up  of  the 
affirmation  of  one  party  and  the  negation  of  the  other,  if 
the  matter  affirmed  be  immaterial,  or  uncertain,  or  double, 
so  too  must  be  the  issue,  and  so  must  be  the  verdict. 

To  secure  this  great  object  of  an  issue,  which  shall  be 
material,  certain,  and  single,  the  rules  of  pleading  have 


100  THE    PRINCIPLES    OF    PLEADING. 

been  devised.  The  most  important  of  them  are  therefore 
reducible  to  four  heads,  which  are  thus  arranged  by  writers 
on  the  science  of  pleading. 

1.  Rules  which  tend  simply  to  the  production  of  an  issue. 

2.  Rules  which  tend  to  secure  materiality  in  the  issue. 

3.  Rules  which  tend  to  secure  certainty  in  the  issue. 

4.  Rules  which  tend  to  secure  singleness  in  the  issue. 
To  these  may  be  added :    .       r'    ' 

5.  Rules i 'which klud  to  prevent' obscurity  and  confusion 
in  thft  Re'eord.  :    »*%■ 

•T5.  Rules  which  tend  to  prevent  prolixity  arid  delay  in 
•  pleading. 

7.  Miscellaneous 'feT-go  reducible  to  none  of  these  heads. 
I  propose  to  treat  of  these  successively  in  this  order, 
and  first, 

SECTION  I. 

OF   RULES    WHICH   TEND    SIMPLY    TO   THE    PRODUCTION 
OF  AN  ISSUE. 

RULE  I. 

To  the  Declaration,  and  to  every  subsequent  pleading  by  way  of  con- 
fession and  avoidance,  the  adverse  party  must  answer  by  demurrer, 
or  by  plea  of  confession  and  avoidance,  or  by  traverse. 

If  either  party,  instead  of  acting  in  pursuance  of  this 
rule,  simply  remains  silent,  judgment,  as  we  have  seen, 
will  be  entered  against  him.  This  Judgment,  when 
against  the  defendant,  is  that  the  plaintiff  recover  accord- 
ing to  his  prayer  of  Judgment,  which  the  defendant  is 
understood  to  assent  to  by  his  silence.  When  against  the 
plaintiff,  it  is  founded  on  the  supposed  abandonment  of  his 
suit,  and  is  called  a  Judgment  of  non  pros,  which  is  equiv- 
alent to  a  dismission  of  his  suit,  with  liberty  to  bring  a 
new  action  for  the  same  cause. 


THE    PRINCIPLES    OF    PLEADING.  101 

To  avoid  such  judgment,  each  party  in  his  turn  must 
demur  or  plead,  and  if  he  pleads,  it  must  be  either  by- 
way of  confession  and  avoidance,  or  of  traverse.  If  his 
pleading  amounts  to  neither  of  these  modes  of  answer  it  is 
liable  to  demurrer  on  that  ground. 

In  treating  of  demurrers,  it  is  necessary  to  speak  1.  Of 
the  nature  and  properties  of  a  demurrer ;  2.  Of  the  effect 
of  passing  by  a  fault  without  demurrer ;  3.  Of  the  consid- 
erations which  should  determine  the  pleader  in  his  election 
whether  to  demur  or  to  plead. 

1.  Of  the  nature  and  properties  of  a  demurrer. 

The  demurrer  is  the  instrument  by  which  the  Court 
performs  its  function  of  sepai-ating  the  unimportant  from 
the  important  facts  of  the  case.  This  was  its  primary,  and 
is  still  its  most  common  and  important  use.  It  is  by 
demurrer  that  the  question  whether  a  plea  is  deficient  in 
materiality,  certainty,  singleness,  or  in  any  other  essential 
quality,  is  brought  before  the  court.  Unless  a  demurrer 
arise  in  some  part  of  the  proceeding,  the  court  knows 
nothing  of  the  case,  the  pleading  being  conducted  in  the 
Clerk's  office,  until  the  parties  arrive  at  an  issue  of  law  or 
fact.  It  is  then,  for  the  first  time,  brought  into  court  for 
the  trial  of  that  issue.  But  for  the  demurrer,  therefore,  no 
mistakes  made  in  the  progress  of  the  cause  could  be  cor- 
rected until  after  verdict,  and  the  time  of  the  Court  might 
be  unprofitably  employed  in  trying  issues  and  obtaining 
verdicts  on  which  no  Judgment  could  be  rendered. 

But  the  use  of  the  demurrer  is  not  only  to  secure  the 
production  of  material  and  certain  issues,  but  also  to  pre- 
vent confusion  and  prolixity,  and  to  secure  the  observance 
of  certain  forms  which  are  found  essential  to  the  purposes 
of  justice.  But  if  no  demurrer  should  be  taken  for 
defects  of  this  latter  sort,  but  notwithstanding  their  exis- 
tence the  case  should  go  on  to  issue  and  verdict,  such 
verdict,  however  informally  obtained,  may  still  be  good 
9* 


102  THE    PRINCIPLES    OF    PLEADING. 

to  establish  the  important  facts  of  the  case,  so  that  Judg- 
ment may  be  entered  on  it.  Between  demurrers  for 
defects  of  this  kind,  and  demurrers  for  want  of  substance, 
there  is  a  manifest  distinction.  They  form,  therefore,  two 
classes,  one  of  which  are  known  by  the  name  of  general 
demurrers,  the  other  are  called  special  demurrers.  For 
the  present  I  shall  confine  my  remarks  to  the  first  class  of 
general  demurrers,  or  demurrers  for  substantial  defects, 
though  much  of  what  I  have  to  say  here  applies  equally 
to  both.  I  merely  intend  to  postpone  speaking  of  what 
is  peculiar  to  special  demurrers  until  I  come  to  speak  of 
such  defects  as  can  only  be  taken  advantage  of  thereby. 

With  respect  to  the  effect  of  a  demurrer,  it  is  first  a 
rule  that  'A  demurrer  admits  all  such  matters  of  fact  as 
are  sufficiently  pleaded.'  The  meaning  of  this  is  that  the 
admission  is  so  qualified,  that,  though,  if  the  demurx'er  be 
overruled,  Judgment  may  be  given  against  the  demurrant, 
on  the  ground  of  such  admission,  yet  he  is  not  to  be 
affected  by  it,  on  any  future  occasion,  if  the  demurrer  be 
sustained.  Moreover  he  is  at  liberty  to  retract  it  on 
receiving  an  intimation  that  the  opinion  of  the  court  is 
unfavorable  to  him. 

Again,  it  is  a  rule,  that,  '  On  demurrer  the  court  will 
consider  the  whole  record,  and  give  Judgment  for  the 
party,  who,  on  the  whole,  appears  entitled  to  it.''  Of  this 
rule  and  the  reason  of  it  I  have  already  spoken  suffi- 
ciently. The  exception  which  is  found,  in  case  of  demur- 
rer to  a  plea  in  abatement,  will  be  considered  when  I 
come  to  speak  of  such  pleas.  It  may  be  proper  to  add, 
that  the  Court  will  not  give  Judgment  for  the  plaintiff, 
merely  because  the  record  discloses  a  good  ground  of 
action,  unless  it  is  the  same  ground,  on  which  he  had 
himself  demanded  Judgment. 

2.  Next  is  to  be  considered  the  effect  of  pleading  over 
without  demurrer. 


THE    PRINCIPLES    OF    PLEADING.  103 

The  effect  of  this  is  to  cure  all  merely  formal  defects, 
and,  according  to  our  Statute  of  Jeofails,  on  which  I  have 
spoken  so  much  at  large,  it  would  seem,  that  all  defects, 
however  gross,  were  cured  by  pleading  over.  But  as  I  have 
shown  how  difficult  it  must  be  to  carry  that  Statute  into 
effect,  but  by  setting  off  one  of  its  absurdities  against 
another,  I  shall  endeavor  to  show  1.  how  the  law  stood 
before  any  Statute  of  Jeofails  was  passed,  and  2.  how  it 
was  modified  by  those  Statutes  which  have  been  found 
reasonable,  practicable,  and  convenient. 

1.  If  we  take  the  case  of  a  pleading,  which  was  bad, 
because  it  had  failed  to  allege  some  indispensable  fact, 
then,  if  the  other  party  determined  to  overlook  this  fault 
for  the  present,  reserving  to  himself  the  opportunity  to 
take  advantage  of  it,  by  motion  in  arrest  of  Judgment,  he 
must  be  careful,  not  to  supply  the  defect,  by  stating  the 
omitted  matter  in  his  own  pleading.  Thus,  in  actions  of 
tresspass  de  bonis  asportatis,  it  is  indispensable,  that  the 
plaintiff  shall  say,  that  the  taking  was  from  his  possession. 
He  omits  to  do  this,  and  his  declaration  would  be  con- 
demned on  demurrer.  If  the  defendant  pleads  not  guilty, 
and  the  Jury,  on  that  issue,  find  for  the  plaintiff,  still  no 
taking  from  the  plaintiffs  possession  is  found  ;  the  facts 
necessary  to  support  the  action  do  not  appear  in  the  rec- 
ord ;  and  the  Judgment  will  be  arrested  for  want  of  them. 

But  suppose  the  defendant  to  justify,  by  showing  a  case 
giving  him  a  right  to  take  the  article,  and  thereupon  he 
says,  '  that  he  took  the  same  out  of  the  plaintiff's  pos- 
session, as  lawfully  he  might.'  Issue  being  joined  on  this, 
the  defendant  has  to  prove  his  matter  of  justification.  He 
fails  to  do  so,  and  the  plaintiff  obtains  a  verdict ;  and  then 
comes  the  question  '  whether  the  Judgment  shall  be  ar- 
rested ? '  Assuredly  not ;  for  now  the  record  contains 
every  necessary  fact,  that  which  the  plaintiff  omitted 
having  been  supplied  by  the  defendant. 


104  THE    PRINCIPLES    OF    PLEADING. 

Again  the  party,  who  declines  to  demur  for  such  defect, 
must  be  careful,  not  to  plead  so  as  to  educe  a  verdict, 
winch  may  supply  it.  Thus  A.  sues  as  Executor  of  B. 
It  is  not  enough  to  call  himself  so  ;  he  must  aver  that  he  is 
so.  For  if  the  defendant  should  plead  non  est  factum, 
and  the  Jury  find  for  the  plaintiff,  on  that  issue,  then  the 
fact,  that  the  bond  sued  on  was  the  defendant's,  is  estab- 
lished, and  it  is  clear,  from  the  record,  that  he  owed,  and 
still  owes,  the  money.  But  to  whom  ?  To  B.  in  his  life 
time,  and  to  his  Executor  or  administrator  since  his  death. 
But  who  is  he  ?  The  record  does  not  show.  The  plain- 
tiff's right  to  sue  in  that  character  is  not  established  by 
the  verdict,  and  Judgment  must  be  arrested. 

But  if  the  defendant  bad  plead  that  the  plaintiff  was 
not  Executor,  and  the  Jury  had  found  for  the  plaintiff  on 
that  issue,  the  excutorial  character  being  thereby  estab- 
lished, all  the  necessary  facts  are  in  the  record,  and  the 
plaintiff  shall  have  Judgment. 

2.  Of  the  Statutes  of  Jeofails  it  might  formerly  have 
been  said  here,  as  it  has  been  said  in  England,  '  that,  at 
certain  stages  of  the  cause,  all  defects  of  form  are  cured 
by  them,'  so  that,  by  their  cumulative  effect,  neither  after 
verdict,  nor  Judgment  by  confession,  nil  dicit  or  non  sum 
informalus,  can  the  Judgment  be  arrested  or  reversed  by 
any  objection  of  that  kind.  Such  was  the  operation  of 
our  first  Statutes  of  Jeofails.  To  these,  even  before  1819, 
were  added  some  things,  which,  although  once  held  to  be 
substantial,  had,  in  practice,  ceased  to  be  so.  The  Statute 
of  1819,  enumerates  all  these,  adds  some  others,  and  winds 
up  by  saying,  that,  neither  for  these,  nor  any  other  defects 
in  pleading,  for  which  the  party  did  not  demur,  shall 
judgment  be  arrested.  A  subsequent  Statute  extends  the 
operation  of  this  to  Judgments  for  want  of  appearance, 
and  thus,  as  &r  as  such  a  thing  is  possible,  abolishes  the 
motion  in  arrest  of  judgment,  where  there  has  been  no 


THE    PRINCIPLES    OP    PLEADING.  105 

demurrer,  in  all  imaginable  cases,  except  perhaps  one.    Of 
that  one  it  is  needless  to  speak. 

3.  As  to  the  advice  by  which  the  pleader  should 
govern  himself  in  deciding  whether  to  plead  or  demur,  I 
think  it  clear  that  he  should  always  and  habitually  do 
both.  By  this  he  secures  to  himself  all  the  advantage  he 
could  have  had  on  a  motion  in  arrest  of  Judgment  at 
Common  Law,  and  perhaps  more.  But  I  have  already 
said  enough  on  this  topic. 

Having  said  thus  much  of  demurrers,  we  turn  to  the 
subject  of  those  pleadings  which  are  distinguished  by  the 
names  of  Declaration,  Replication,  Surrejoinder,  and  Sur- 
rebutter, on  the  part  of  the  plaintiff,  and  of  Plea,  Rejoin- 
der, and  Rebutter,  when  proceeding  from  the  defendant. 
While  the  Demurrer  always  proposes  a  question  of  Laiv, 
it  is  the  office  of  each  of  these  to  allege  or  to  deny  some 
matter  of  fact.  The  declaration  always  does  the  former. 
The  subsequent  pleadings  may  do  either.  Those  which 
allege  new  matter,  are  called  pleas  of  confession  and 
avoidance,  those  which  deny  what  has  been  alleged  by  the 
other  party  are  pleas  of  denial,  or  traverse,  which  is  the 
technical  name. 

1.  As  to  the  quality  of  pleadings  by  way  of  confession 
and  avoidance,  it  is  a  rule,  '  that  every  pleading  by  way  of 
confession  and  avoidance  must  give  Color!  The  meaning 
of  this  may  be  illustrated  by  the  example  already  before 
us  of  a  plea  of  release  to  an  action  of  debt  on  bond. 
There  the  tendency  of  the  plea  is  to  admit  an  apparent 
right  in  the  plaintiff,  viz.  that  the  defendant  did,  as  alleged 
in  the  declaration,  execute  the  bond,  and  would  therefore 
be,  prima  facie,  chargeable  with  the  debt ;  but  shows  new 
matter  not  before  disclosed,  by  which  that  apparent  right 
is  done  away ;  viz.  that  the  plaintiff  had  executed  to  him 
a  release.  Now  here  the  plea  gives  color  to  the  declaration. 
But  let  it  be  supposed  that  the  defendant  had  plead  that 


106  TIIE    PRINCIPLES    OF    PLEADING. 

be  had  executed  the  bond  to  another  person  and  not  to 
the  plaintiff:  this  would  be  an  informal  plea,  as  want- 
ing color,  because,  if  the  bond  were  not  to  the  plain- 
tiff, there  would  not  exist  even  an  apparent  cause  of 
action,  requiring  the  allegation  of  new  matter  to  avoid  it, 
and  the  declaration  would  be  properly  answered  by  a 
traverse,  denying  that  the  deed  stated  in  the  declaration  is 
the  defendant's  deed. 

Mr.  Stephen  tells  us  that  Color  is  a  term  of  the  ancient 
Rhetoricians,  of  whom  it  has  been  not  more  wittily  than 
truly  said,  '  that  all  their  rules  teach  only  how  to  name ' 
(not  use)  'their  tools.'  No  wonder  therefore  that  it 
conveys  no  meaning  to  the  mind  of  the  uninitiated.  The 
sooner  we  get  rid  of  it  the  better,  and  the  rather,  because 
the  good  sense  of  the  Courts  has  found  a  way  to  get  rid 
of  the  thing  itself. 

It  must  be  obvious  to  the  reader,  that  the  plea  above 
supposed,  amounting  in  substance  to  a  denial  of  the  whole 
cause  of  action,  is,  of  course,  substantially  good.  Yet  it 
is  bad  in  form,  for  a  reason  which  I  would  state  thus.  The 
law  allows  no  pleas  but  by  way  of  Confession  and  avoid- 
ance, and  by  way  of  Traverse.  A  plea  of  avoidance 
without  confession  is  unknown  to  the  law.  There  is 
indeed  no  formal  confession  in  terms,  but  as  a  party  is 
held  to  confess  all  that  he  does  not  traverse,  the  silence  of 
the  plea  as  to  the  prima  facie  cause  of  action  is  confession 
enough.  But  let  the  plea  not  be  silent  on  that  point,  let 
it,  in  terms,  deny  the  fact  charged,  and  then  go  on  to  state 
matter  in  avoidance,  and  the  reader  must  see  that  duplicity 
and  confusion  must  be  the  consequence.  The  same  must 
be  l lie  result  if  the  matter  plead  as  by  way  of  avoidance 
is  inconsistent  with  the  truth  of  the  matter  to  be  avoided. 
Thus  the  defendant  in  the  case  above  supposed,  being 
sued  (on  a  bond  executed  to  John  Smith,)  by  another  John 
Smith,   who    has  got   possession  of   it,  pleads  that  he 


THE    PRINCIPLES    OP    PLEADING.  107 

executed  and  delivered  the  said  bond  to  the  first  named 
John  Smith.  Now  the  bond  on  which  he  is  sued  is 
described  as  one  by  which  he  acknowledged  himself  to  be 
indebted  to  John  Smith  the  plaintiff.  There  is  a 
manifest  inconsistency  therefore,  in  saying  that  he  executed 
the  said  bond  (viz.  a  bond  by  which  it  is  said  he  acknowl- 
edged himself  indebted  to  John  Smith  the  plaintiff,  to 
another  man,  to  whom,  and  not  to  John  Smith  the  plain- 
tiff he,  did  acknowledge  himself  to  be  indebted  by  the  bond 
which  he  confesses,  but,  in  confessing,  falsely  describes, 
as  the  said  bond.  Such  a  bond  as  is  described  he  did  not 
execute,  although  he  did  execute  one  in  the  same  terms  to 
another  man.  But  with  this  last  the  court  has  nothing  to 
do,  and  therefore  requires  the  defendant  to  say  directly 
that  the  supposed  bond,  acknowledging  indebtedness  to 
John  Smith  the  plaintiff  'is  not  his  deed.'  So  the  bond 
of  a  person  non  compos  mentis  is  ip>so  facto  void.  For 
him  therefore  to  plead  that  he  was  so  when  he  executed 
the  writing,  is  to  deny  and  avoid  in  the  same  breath.  The 
supposed  bond  '  is  not  his  deed.' 

Such  pleas  therefore,  though  substantially  good,  are 
bad  in  form.  Hence  they  are  liable  to  Demurrer ;  but  the 
demurrer  must  be  of  that  kind  called  special,  of  which  T 
shall  only  say  here,  that  he  who  demurs  for  a  formal 
defect  must  append  to  his  demurrer  a  precise  specification 
of  the  very  defect  for  which  he  demurs.  The  court 
otherwise  takes  no  notice  of  it,  and  overrules  the  demurrer. 
But  if  the  proper  specification  be  appended,  the  demurrer 
will  be  sustained,  as  if  the  fault  was  one  of  the  most 
substantial  importance. 

Now  although  the  reasoning  in  support  of  this  techni- 
cality is  unanswerable,  yet  its  universal  application  is 
sometimes  productive  of  inconvenience.  For  suppose  the 
defendant  to  wish  to  avail  himself  of  a  distinct  affirmative 
fact,  as  coverture,  &c.  of  which  it  is  supposed  to  be  doubted 


108  THE    PRINCIPLES    OF    PLEADING. 

whether  it  does  amount  to  the  general  issue.  If  it  be 
held  that  it  does  not,  then  if  he  pleads  the  general  issue 
he  will  be  defeated  though  he  had  a  good  defence.  Such 
would  be  the  result  if  on  the  plea  of  non  est  factum,  the 
defendant  had  offered  to  prove  infancy.  Would  it  be  the 
same  if  on  the  same  plea  he  had  offered  to  prove  insanity  ? 
Now  this  was  long  a  questio  vexata.  In  the  time  of 
Henry  VI.  the  plea  of  insanity  was  disallowed.  In  the 
reign  of  Ann  evidence  of  insanity  was  held  sufficient  to 
support  the  general  issue  of  non  est  factum.  These  two 
decisions  are  often  quoted  as  in  conflict  with  each  other. 
But  they  are  exactly  harmonious.  For  if  it  were  true,  as 
was  decided  under  Ann,  that  insanity  amounts  to  the 
general  issue,  then,  in  the  reign  of  Henry  VI.  when  as 
yet  the  distinction  between  general  and  special  demurrer 
was  not  known,  the  court  was  bound  to  reject  the  special 
plea.  Yet  in  consequence  of  this  supposed  conflict  between 
these  two  cases,  and  a  real  difference  of  opinion  between 
Lyttleton  and  Fitzherbert  on  a  kindred  point,  the  question 
whether  the  deed  of  a  madman  is  absolutely  and  ipso  facto 
void,  has  remained  in  some  uncertainty  for  four  hundred 
years.  Now  suppose  that  in  the  reign  of  Henry  VI.  the 
law  requiring  specifications  of  defects  of  form  had  been  the 
same  as  now,  and  suppose  the  plaintiff  to  have  demurred 
specially  to  the  plea  of  insanity,  as  amounting  to  the 
general  issue.  The  case  being  called  up  we  suppose  the 
defendant  to  profess  frankly  that  he  thinks  it  does  so,  and 
to  declare,  that  it  is  only  because  he  is  not  sure  of  it,  that 
he  did  not  plead  the  general  issue.  He  has  plead  in  this 
form,  in  order  to  have  the  question  decided.  This  aim  is 
baffled  by  the  special  demurrer,  in  the  argument  of  which 
he  would  be  placed  in  a  false  position,  and  almost  con- 
strained to  support  the  form  of  his  plea  by  proving  it  to 
be  bad  in  substance.  In  this  dilemma  we  suppose  the 
court  to  require  the  plaintiff  to  strike  out  the  specification 


THE    PRINCIPLES    OF    PLEADING.  10i» 

from  his  demurrer,  and  demur  generally,  or  to  take  issue 
on  the  plea.  They  see  that  no  harm  can  come  of  this, 
for,  if  the  plaintiff*  demurs  generally,  judgment  will  be 
given  for  him  unless  the  plea  be  substantially  good,  and 
if  he  takes  issue  and  the  issue  be  found  for  the  defendant, 
still,  if  the  plea  be  not  substantially  good,  judgment  on  the 
whole  record  will  be  entered  for  the  plaintiff,  non  obstante 
veredicto.  We  suppose  then  the  plaintiff  to  demur  gene- 
rally, and  the  demurrer  to  be  overruled,  as,  according  to 
the  decision  in  Queen  Ann's  time  it  would  have  been. 
Would  the  doubt  which  has  since  perplexed  the  profession 
have  existed  ?  Had  the  demurrer  been  sustained,  would 
not  the  law  have  been  equally  clear  the  other  way  ?  Now 
precisely  what  we  here  suppose  the  court  to  have  done  in 
the  reign  of  Henry  VI.  the  English  courts  have  since  done. 
Instead  of  demurring,  they  l-equire  the  plaintiff  to  move 
the  court  to  compel  the  defendant  to  strike  out  the  plea. 
and  plead  the  general  issue.  If  he  cannot  show  that  the 
retaining  of  the  plea  is  of  importance,  as  the  means  of 
bringing  some  vexed  question  of  law  to  a  direct,  plain  and 
authoritative  decision,  either  on  a  demurrer,  or  on  a 
motion  for  Judgment  non  obstante,  they  will  require  him 
to  strike  out  and  plead  accordingly.  But  if  he  can  show 
this,  the  plea  is  permitted  to  stand,  and  the  plaintiff  is 
required  to  demur  generally  or  plead  to  issue.  By  this 
simple  means,  which  is  indeed  an  innovation,  but  one 
which  deserves  to  be  sanctioned,  the  question  of  color  is 
put  to  rest,  an  inconvenient  technicality  is  got  rid  of,  while 
the  objection  is  allowed  all  its  force  in  cases  appropriate 
to  it,  and  more  is  done  to  disembarrass  the  profession  from 
a  perplexing  difficulty,  than  by  all  the  Statutes  of  Jeofails 
ever  enacted.  I  shall  therefore  say  no  more  of  Color.  If 
I  shall  be  so  fortunate  as  successfully  to  recommend  this 
improvement  to  the  favor  of  the  profession,  I  shall  not 
have  lost  my  labor. 
10 


110  THE    PRINCIPLES    OF    PLEADING. 

The  substance  of  the  rule  in  question  then  is  this. 
Every  pleading,  by  way  of  confession  and  avoidance,  should 
allege  some  fact  consistent  with  the  truth  of  the  matter 
alleged  on  the  other  side,  and  which,  if  true,  operates  by 
way  of  justification,  excuse,  or  discharge  of  such  matter. 
Thus  the  plea,  in  slander,  that  the  words  charged  to  have 
been  spoken  were  true,  is  a  justification.  The  plea  that 
the  consideration  of  a  bond  was  usurious,  is  an  excuse. 
The  plea  that  the  debt  has  been  paid,  is  a  matter  of 
discharge.  In  the  first  case  the  plea  admits  the  speaking 
of  the  words.  In  the  other  two  the  execution  of  the 
bond  is  admitted.  In  all  these  there  must  be  a  verdict  for 
the  plaintiff  if  the  defendant  does  not  prove  what  he  has 
alleged,  to  wit ;  the  truth  of  the  words,  —  the  usurious 
consideration  —  or  the  payment. 

If  the  matter  alleged  in  the  plea  is  inconsistent  with  the 
truth  of  the  matter  alleged  on  the  other  side,  then  there 
can  be  no  confession,  and  the  plea  is  bad.  As  a  general 
rule  the  remedy  for  all  faults  in  pleading  is  to  demur. 
But  when  a  special  demurrer  is  filed  for  this  fault,  the 
defendant  undertakes  to  show  that  the  purposes  of  justice 
will  be  promoted  by  requiring  the  plaintiff,  instead  of 
demurring,  to  move  the  court  to  compel  him  to  strike  out 
the  plea  and  traverse.  If  he  fails  in  satisfying  the  court 
of  this  the  demurrer  is  allowed  to  stand,  and  will  be 
decided  against  him,  unless  he  agrees  to  strike  out  and 
plead  as  directed.  But  if  the  court  can  be  made  to  see 
that  Justice  will  be  advanced  by  letting  the  plea  stand, 
they  will  give  the  plaintiff  his  choice  to  have  the  case 
decided  on  a  general  demurrer,  or  to  withdraw  his 
demurrer  and  reply. 

So  much  for  pleas  by  way  of  confession  and  avoidance. 
To  say  that  if  the  matter  plead  by  way  of  avoidance  does 
not  justify,  excuse,  or  discharge,  the  pica  will  be  bad,  is  to 
state  a  proposition  belonging  more  to  the  law  of  right 
than  to  that  of  remedy. 


THE    PRINCIPLES    OF    PLEADING.  Ill 

2.  We  come  to  speak  of  the  nature  and  properties  of  the 
Traverse. 

In  almost  every  form  of  action  there  is  a  particular 
formula  for  the  plea  called  the  '  general  issue.'  It  is  the 
property  of  this  to  deny  all  the  facts  set  forth  in  the 
declaration,  and  to  put  the  plaintiff  on  the  proof  of  every 
essential  fact  alleged  by  him.  Whatever  be  the  number 
of  facts  which  make  up  the  plaintiff's  case,  the  use  of  this 
formula  by  the  defendant  makes  it  necessary  for  him  to 
prove  each  one  of  them,  as  much  as  if  that  one,  and  that 
alone  had  been  denied.  It  follows  that  there  can  be  no 
advantage  in  singling  out  any  one  fact  and  denying  that, 
and  hence,  when  the  defendant  means  to  plead  by  way  of 
traverse,  he  uses  this  formula,  in  every  case  to  which  it  is 
applicable. 

In  debt  on  writing  under  seal  the  general  issue  is  what 
is  called  the  plea  of  non  est  factum  :  thus  ;  '  The  said  C. 
D.  says  that  the  said  supposed  writing  obligatory  is  not  his 
deed,  and  of  this  he  puts  himself  upon  the  Country.' 

This  form  may  be  applied  to  any  writing  under  seal  by 
varying  the  words  '  writing  obligatory '  to  '  indenture,' 
'  articles  of  agreement,'  &c.  or,  as  I  conceive,  by  the  use  of 
the  generic  word  '  writing '  alone. 

The  reader  will  see  that  this  plea  does  put  the  plaintiff 
on  the  proof  of  all  the  facts  of  his  case,  because  in  truth 
the  only  fact  alleged  by  him  is  that '  the  defendant,  by  his 
writing  obligatory  sealed '  &c. '  acknowledged '  &c.  This  is 
all  he  affirms  and  all  he  has  to  prove.  There  is  no  ques- 
tion about  considei-ation,  for  he  has  alleged  none.  Hence 
the  plea  of  nil  debet  is  not  allowed,  for  that  might  seem  to 
require  the  plaintiff  to  prove  something  he  has  not  alleged.* 
A  word  or  two.  may  be  useful  here  to  explain  this  matter. 


*  This  plea  would  not  make  an  issue,  for  it  denies  what  the  plaintiff 
has  not  averred. 


112  THE    PRINCIPLES    OF    PLEADING. 

Indebtedness  can  only  arise  by  Statute,  by  Judgment, 
or  by  Contract,  and  a  Contract  is  defined  to  be  '  a  promise 
on  consideration.''  He  who  acknowledges  himself  to  be 
indebted  does  therefore  acknowledge  the  existence  of  that 
state  of  facts  which  constitutes  indebtedness.  Hence  to 
allow  him  to  plead  nil  debet,  would  be  to  allow  him  to  deny 
what  he  has  said  under  his  seal,  and  this  he  is  estopped  to 
do,  unless  he  will  deny  the  seal  itself.  What  he  has 
admitted  under  seal  being  true,  he  is  indebted,  and  in  what 
way  it  is  not  for  the  plaintiff"  to  show. 

If  indeed  his  indebtedness  has  come  by  a  consideration 
contrary  to  law,  (as  usury,)  he  brings  this  up,  not  by  calling 
on  the  plaintiff'  to  prove  consideration,  but  by  taking  on 
himself  to  prove  that  the  consideration  was  unlawful.  In 
doing  this  he  does  not  contradict  his  own  deed.  He  admits 
himself  to  be  indebted,  as  he  has  said,  but  prays  judgment 
whether  he  shall  be  charged  with  the  debt,  because,  as  he 
goes  on  to  show,  the  consideration  was  one  on  which  the 
Statute  has  said  he  shall  not  be  charged. 

It  is  proper  to  add  that  this  plea  has  the  property  of 
putting  the  plaintiff  on  the  proof  of  his  whole  case  only 
where  the  obligee  is  plaintiff.  When  suit  is  brought  by 
an  assignee  of  a  bond,  the  assignment  must  be  denied  by 
a  separate  plea,  or  it  is  admitted.  So  if  there  be  a  series 
of  assignments  the  defendant  can  only  put  the  plaintiff"  on 
the  proof  of  them  all  by  denying  each  one  in  a  separate 
plea. 

Nothing  of  this  reasoning  applies  to  debt  on  simple  con- 
n-art. Here  too  is  an  acknowledgment  of  indebtedness, 
but  this  not  being  made  under  seal,  and  the  indebtedness 
being  averred,  the  party  is  not  estopped  to  deny  the  fact, 
and  call  on  the  plaintiff  for  proof  of  every  thing  constituting 
indebtedness.     As  consideration,  in  all  eases  of  indebtedness 

by  contract,  is  indispensable  to  this,  the  plaintiff  so  called 
on  must  prove  consideration.     The  general  issue  of  nil 


THE    PRINCIPLES    OF    PLEADING.  113 

debet  puts  him  on  proof  of  this,  and  also  of  all  assignments. 
The  form  is  as  follows : 

'  The  said  C.  D.  says  he  does  not  owe  the  said  sum  of 
money  to  the  said  A.  B.  or  any  part  thereof  as  the  said 
A.  B.  has  above  complained ;  and  of  this  he  puts  himself 
upon  the  Country.' 

In  Detinue  the  general  issue  is  called  the  plea  of  non 
detinct,  and  is  as  follows : 

'  The  said  C.  D.  says  he  does  not  detain  the  said  goods 
and  chattels  in  the  declaration  specified,  or  any  part  there- 
of, in  manner  and  form  as  the  said  A.  B.  has  above  .com- 
plained ;  and  of  this  he  puts  himself  upon  the  Country.' 

In  Trespass  vi  et  armis,  the  general  issue  is  not  guilty, 
in  the  following  form : 

'  The  said  C.  D.  says  that  he  is  not  guilty  of  the  said 
trespasses  above  laid  to  his  charge,  or  any  part  thereof,  in 
manner  and  form  as  the  said  A.  B.  has  above  complained. 
And  of  this  he  puts  himself  upon  the  Country.' 

In  trespass  on  the  case  in  form  ex  delicto  the  general 
issue  is  the  same,  the  word  '  premises '  being  put  in  the 
place  of  the  word  '  trespasses.' 

In  trespass  on  the  case  on  promises  (or  in  form  ex 
contractu)  the  general  issue  is  called  the  plea  of  non 
assumpsit,  and  is  in  the  following  form : 

'The  said  C.  D.  says  that  he  did  not  undertake  and 
promise,  in  manner  and  form  as  the  said  A.  B.  has  above 
complained ;  and  of  this  he  puts  himself  on  the  Country.' 

In  Replevin  the  general  issue  is  called  non  ccpit,  and 
runs  thus : 

'  The  said  C.  D.  says  that  he  did  not  take  the  said  goods 
and  chattels  in  the  declaration  mentioned,  or  any  part 
thereof,  as  the  said  A.  B.  has  above  complained ;  and  of 
this  he  puts  himself  upon  the  country.' 

In  Covenant,  Stephen  says  that l  non  est  factum'  is  the 
general  issue.  Others  have  said  that  in  this  action  there 
10* 


114  THE    PRINCIPLES    OF    PLEADING. 

is  no  general  issue,  and  this  I  take  to  be  the  true  account 
of  the  matter.  It  certainly  does  not  deny  the  breach,  and 
therefore,  the  issue  being  found  for  the  plaintiff,  on  that 
plea,  the  breach  must  stand  confessed.  It  is  true  that  as 
the  damages  are  to  be  assessed  by  the  Jury,  evidence  is 
generally  necessary  to  enable  them  to  say  how  much  has 
been  sustained.  But  this  is  equally  true  on  a  writ  of 
enquiry,  where  every  thing  is  confessed.  Hence  I  con- 
ceive that  if  the  defendant  means  to  call  for  proof  of  the 
breach  he  must  traverse  it  by  a  separate  plea.  If  so,  '-non 
r st  factum'  is  not  properly  a  general  issue. 

In  the  writ  of  right,  according  to  Stephen,  there  is  no 
general  issue.  This  I  think  is  clearly  a  mistake.  A  plea 
which  puts  the  plaintiff  on  the  proof  of  his  whole  case  may 
certainly  be  called  a  general  issue.  Now  in  the  English 
courts  on  a  writ  of  right  the  plaintiff  states  his  case,  which 
always  consists  of  this  single  fact,  '  that  in  time  of  peace, 
within  sixty  years,  he  or  his  ancestor  was  seized  by  taking 
esplees,  &c.'  Now  the  defendant  may  deny  this  fact,  or  he 
may  admit  it,  and  yet  take  on  himself  to  show  that  the  right 
is  in  himself.  This  last  is  called  'joining  the  mise  on  the 
mere  right,'  which  clearly  is  no  general  issue,  for  it  admits 
every  thing,  and  is  in  fact  a  plea  of  confession  and  avoid- 
ance. The  first  is  called  '  tendering  a  demi-mark  (6  |  8.) 
to  enquire  of  the  seisin.'  This  admitted  nothing,  but  threw 
on  the  plaintiff  the  onus  probandi  of  the  only  fact  alleged 
by  him ;  to  wit  the  seisin. 

There  are  one  or  two  curious  matters  in  this  action,  of 
which  I  propose  to  say  a  few  words,  in  the  hope  of  remov- 
in<z  some  difficulties  in  which  our  courts  have  involved 
themselves. 

1 .  1  have  said  above  that  it  is  always  the  office  of  a  plea 
to  allege  or  deny  some  fact.  To  this  proposition  the  join- 
ing the  mise  on  the  mere  right  affords  the  only  exception 
known  to  the  Common  Law.     Instead  of  alleging  the  fact-; 


THE    PRINCIPLES    OF    PLEADING.  115 

■which  constitute  the  minor  premise  of  his  right,  the  defen- 
dant is  allowed  to  '  pray  recognition  to  he  made  whether 
lie  himself  has  greater  right  to  hold  the  tenements  aforesaid 
as  he  now  holds  them,  or  the  plaintiff  to  have  them  as  he 
above  demands  them.'  If  instead  of  pleading  thus,  the 
defendant  were  required  to  set  forth  the  facts  of  his  title, 
the  plea  might  be  inconveniently  voluminous,  and  hence  this 
departure  from  the  general  principle.  Still  it  may  be  seen 
that  as  this  plea  denies  nothing,  it  admits  the  seisin,  which 
bring  prima  facie  evidence  of  right,  will  entitle  the  plaintiff 
to  recover  unless  the  defendant  shows  title  in  himself. 
Hence  the  onus  probandi  is  on  the  defendant;  and  hence 
the  tenant  for  life,  who  jeoparded  the  title  of  the  reversion 
by  thus  pleading,  forfeited  his  estate,  though  he  forfeited 
nothing  by  pleading  in  the  other  way,  whereby  nothing 
was  admitted. 

The  Virginia  Statute  (R.  C.  c.  118)  carries  this  relax- 
ation of  the  principles  of  pleading  one  step  farther  than 
the  Common  Law.  It  permits  (and  indeed  requires)  the 
plaintiff  simply  to  aver  that  he  has  right  in  the  premises, 
without  saying  how,  which  right  the  defendant  denies. 
Now  here  nothing  is  admitted ;  and  yet  it  has  been  said, 
that  because,  in  England,  the  defendant  who  admits  the 
plaintiff's  seisin,  must  prove  his  own  better  right,  therefore 
the  onus  probandi  lies  on  the  defendant  in  Virginia  too, 
where  he  admits  nothing  at  all. 

2.  The  joining  of  the  mise  being  in  the  nature  of  a  plea 
of  confession  and  avoidance,  and  the  tendering  the  demi- 
mark  to  enquire  of  the  seisin  being  in  the  nature  of  a 
traverse,  it  becomes  a  matter  of  some  interest  to  divine 
how  it  happened  that  the  defendant  was  required  thus  to 
submit  to  a  sort  of  tax  to  get  leave  to  traverse.  The 
answer  would  seem  to  be,  that  by  declining  to  rely  on 
his  own  right,  he  seemed  to  admit  that  he  was  in  posses- 
sion of  land  not  belonging  to  him,  and  sought  to  rest  his 


116  THE    PRINCIPLES    OF    PLEADING. 

defence  solely  on  the  want  of  title  in  the  plaintiff.  Now 
if  the  land  belonged  to  neither,  it  belonged  to  some  other 
individual  or  to  the  king  himself,  who  might  reasonably 
enough  make  the  defendant  pay  something  for  leave  to 
protect  himself  by  the  simple  fact  of  possession,  in  the 
enjoyment  of  what  did  not  belong  to  him.  This  is  a  mere 
matter  of  speculation  and  curiosity ;  but  it  may  enable  us 
to  see  through  the  disguise  which  prevented  so  acute  a 
writer  as  Stephen  from  seeing  that  this  tendering  a  demi- 
mark,  &c,  has  all  the  properties  of  a  general  issue.  At 
the  same  time  it  may  be  seen  that  there  is  nothing  analo- 
gous to  this  in  our  law.  In  England,  the  count  setting 
forth  a  fact,  it  was  necessary  that  the  defendant  should 
have  his  choice  to  traverse,  or  confess  and  avoid.  Here 
the  count  stating  no  fact,  there  can  be  no  confession  and 
avoidance.  The  thing  alleged  is  a  Right  made  up  of  Law 
and  Fact,  which  is  met  by  a  counter-claim  of  right,  which 
may  be  in  the  nature  of  traverse,  or  confession  and  avoid- 
ance, as  the  case  may  turn  out.  What  are  the  facts  on 
which  either  party  relies  can  only  be  known  when  the 
evidence  is  heard,  and  all  the  questions,  which  would,  in 
ordinary  cases,  be  decided  on  the  pleadings,  must  be  dis- 
posed of  at  the  trial.  The  utter  confusion  in  which  we 
find  all  cases  of  this  sort  involved  in  Virginia,  may  be 
taken  as  a  proof  of  what  is  lost  when  the  advantages  of 
special  pleading  are  surrendered,  and  the  Jury  are  sworn 
on  an  issue  made  up  of  Law  and  fact.  I  am  not  sure  that 
all  the  inconvenience  of  prolixity  affords  a  sufficient  reason 
for  dispensing  with  a  precise  statement  of  the  facts  of  the 
case  in  the  pleadings  on  a  writ  of  right.  The  certain 
knowledge  of  the  law,  and  the  positive  ascertainment  of  the 
facts  of  each  case,  might  be  cheaply  purchased  at  a  much 
greater  price. 

'The  important  character  of  the  general  issue  makes  it 
material  to  explain  distinctly  in  what  cases  it  may  and 


THE    PRINCIPLES    OF    PLEADING.  117 

ought  to  be  used  ;  and  this  is  the  more  necessary  because 
an  allowed  relaxation  in  modern  practice  has,  in  some 
actions,  given  it  an  application  more  extensive  than  belongs 
to  it  in  principle.  To  obtain  a  clear  view  of  this  subject, 
we  must  examine  the  language  of  the  different  general 
issues,  in  reference  to  the  declarations  which  they  respect- 
ively traverse.' 

The  general  issue  or  plea  of  non  est  factum,  will  be 
held  to  be  true,  if  the  plaintiff  fails  to  prove  the  execution 
of  the  instrument  set  forth,  or  if  the  defendant  can  prove 
any  matter  which  made  it  absolutely  void  ab  initio.  Of 
this  latter  description  I  am  not  aware  of  any  case  but 
coverture  and  lunacy.  Duresse,  Infancy,  and  illegal  consid- 
erations, only  make  the  bond  voidable  by  plea,  and  must 
be  specially  pleaded.* 

The  plea  of  nil  debet  to  debt  on  simple  contract  is  much 
more  extensive  in  its  operation.  The  reason  of  this  is, 
that  while  the  plea  of  non  est  factum  calls  only  for  proof 
of  the  execution  of  the  deed,  because  no  more  is  alleged, 
that  of  nil  debet  on  simple  contract  calls  for  proof  of  the 
consideration  alleged,  and  all  the  assignments  which,  taken 
together,  make  up  the  case  of  the  plaintiff  as  stated  in  the 
declaration.  The  declaration  does  not  merely  say  that  the 
defendant  acknowledged  himself  to  be  indebted,  which 
acknowledgement,  when  made  under  seal,  he  is  estopped 
to  deny.  It  avers  that  he  was  indebted,  and  undertakes  to 
show  how.  Now  indebtedness  cannot  arise  by  a  promise 
without  consideration,  (and  so  the  plaintiff  must  prove  a 
consideration,)  nor  on  an  unlawful  consideration,  (and  so 
he  must  prove  a  lawful  consideration,)  nor  on  the  promise 

*  Variance  will  be  a  defence  on  this  plea.  For  the  issue  is  joined  on 
the  execution  of  the  bond  set  forth,  and  proof  of  the  execution  of  a 
different  bond  will  be  excluded  as  inapposite.  So  a  bond  executed  as 
an  escrow  is  not  the  party's  deed  till  the  condition  is  fulfilled.  But 
although  this  be  so,  the  defendant  has  been  allowed  to  plead  that  matter 
specially  for  the  reasons  given  above  in  speaking  of  color. 


118  THE    PRINCIPLES    OF    PLEADING. 

of  an  infant,  (and  so  the  defendant  may  support  his  plea 
by  proving  infancy.)  Moreover  the  indebtedness  is 
charged  as  a  subsisting  fact  at  the  time  of  the  action 
brought.  If,  then,  the  debt  had  been  before  that  time  paid 
or  released,  it  will  be  true,  as  the  defendant  says,  '  that  he 
does  not  owe,'  and  so  the  truth  of  his  plea  will  be  estab- 
lished. Hence  where  nil  debet  can  be  plead,  almost  all 
pleas  by  way  of  confession  and  avoidance  are  superfluous, 
nearly  all  defences  resolving  themselves  into  this,  '  that  the 
defendant  does  not  owe.'  The  exceptions  to  this  general 
proposition  are  quite  arbitrary,  such  as  set  off"  (without 
notice)  '  nil  habuit  in  tenementis'  or  recovery  by  a  third 
person  in  a  qui  tarn  action.  In  these  cases  the  defendant 
is  not  indebted,  but  he  is  required  to  plead  specially.  So 
the  act  of  limitations  and  tender  must  be  plead  —  but  with 
good  reason,  for  the  defendant  is  still  indebted,  though  he 
may  protect  himself  from  recovery  by  such  plea. 

In  detinue  the  plea  of  non  detinet  denies  the  detention 
of  the  plaintiff's  goods.  Hence,  if  he  cannot  prove  them 
to  be  his,  the  plea  is  supported.  And  this  will  hold  even 
if  the  plaintiff,  having  once  had  title,  has  lost  it  by  the  act 
of  limitations.  Hence  the  act  need  not  be  plead,  but  will 
protect  the  defendant  under  the  general  issue  of  non  detinet. 

The  plea  of  not  guilty,  in  trespass,  assault,  and  battery, 
is  only  proper  where  the  defendant  did  not  beat  &c.  the 
plaintiff.  Any  justification  must  be  plead  specially.  In 
trespass  cle  bonis  asportatis,  or  quare  clausum  fugit,  the 
questions  of  the  defendant's  right  of  possession,  and  the 
plaintiff's  title  to  the  goods  or  close,  are  involved  in  the 
general  issue,  and  there  is  no  need  to  plead  the  want  of 
possession  in  the  plaintiff'  or  the  better  title  of  the 
defendant. 

So  far  no  greater  latitude  is  allowed  to  the  general  issue 
than  may  1"'  justified  <>n  the  soundest  principles  of  plead- 
ing ;  though  I  am  much  inclined  to  think  that  the  purposes 


THE    PRINCIPLES     OF    PLEADING.  119 

of  justice  would  be  advanced  by  some  positive  legislation 
narrowing  the  scope  of  some  of  these  pleas.  Of  this 
hereafter. 

The  plea  of  non  assumpsit  in  actions  on  the  case  on 
promises,  stands  on  peculiar  principles,  and  can  only  be 
explained  by  a  history  of  the  action,  and  a  view  of  the 
nature  of  the  declaration. 

When  the  action  of  assumpsit  was  first  invented,  the 
courts  supposed  that  it  was  capable  of  being  made  subject 
to  all  the  rules  of  pleading,  like  any  other  action.  Hence 
they  required  some  particularity  from  the  plaintiff  in  the 
statement  of  his  case,  so  that  he  must  say  whether  it  was 
for  goods  sold  or  for  work  done,  &c,  and  also  whether  at 
an  agreed  price,  or  for  quantum  valebat,  or  as  much  as  the 
article  or  service  might  be  worth.  It  seemed  to  be 
supposed  that  thus  much  particularity  being  required  of 
the  plaintiff,  the  defendant  would  understand  enough  of 
the  facts  of  the  case  to  know  whether  to  traverse  or  confess 
and  avoid.  But  it  was  soon  found  impracticable  to  apply 
the  precise  and  rigid  rules  of  pleading  to  a  form  of  action 
devised  for  cases  too  vague  and  indeterminate  to  be 
susceptible  of  accurate  statement.  Hence,  one  by  one, 
the  rules  of  pleading  were  relaxed  and  dispensed  with, 
until  the  action  of  assumpsit,  has  become  a  sort  of  char- 
tered libertine. 

It  is  curious  and  amusing  to  trace  the  progress  of  these  in- 
novations. The  consideration,  being  the  gist  of  the  action, 
must  be  stated.  "Was  it  necessary  to  prove  the  whole  con- 
sideration as  laid  ?  No :  for  if  so  there  must  be  a  separate 
count  for  each  item,  unless  the  plaintiff  were  sure  of  being 
able  to  prove  every  one.  Was  the  plaintiff  who  had  fur- 
nished goods  at  the  instance  of  the  defendant,  to  be  defeated 
because  he  could  not  prove  a  precise  promise  ?  No  :  The 
request  should  imply  the  promise.  What  promise  ?  A 
separate  one  for  each  item  ?    Or  a  lumping  promise  for  the 


120  THE    PRINCIPLES     OF    PLEADING. 

whole  ?  The  last  certainly.  The  law,  then,  would  imply 
such  a  promise  as  the  defendant,  on  demand,  ought  to  have 
made  ?  Certainly.  Suppose  the  amount  made  up  of  goods 
and  labor,  the  defendant  ought  to  promise  to  pay  for  both  ? 
Certainly.  Then  a  count  charging  indebtedness  for  goods 
sold  —  work  done  —  money  laid  out  —  money  lent  —  money 
had  and  received,  and  an  account  stated,  with  one  sweeping 
promise  for  the  whole  would  be  good  ?  Yes.  And  the 
plaintiff  need  not  prove  the  whole  consideration  ?  It  has 
been  long  since  so  decided.  Then  will  not  such  a  count  fit- 
any  imaginable  case  of  indebitatus  assumpsit  ?     Yes. 

Again.  A  promises  to  pay  B.  as  much  as  an  article 
furnished  is  worth.  The  article  being  worth  $100,  does 
not  A.  owe  B.  that  sum  ?  Yes.  If  called  on  to  pay,  ought 
he  not,  being  so  indebted,  to  pay,  or  promise  to  pay? 
Certainly.  If  he  refuses,  will  not  the  law  imply  such  a 
promise  ?  It  seems  so.  Then  may  not  the  indebitatus 
assumpsit  be  made  to  supersede  the  quantum  valebat  and 
quantum  meruit  counts  ?  It  may  of  course.  Then  may 
not  one  such  general  count  as  is  above  supposed  be  made 
to  apply  to  any  case  of  a  promise  to  pay  money  ?  It  may. 
except  where  the  consideration  is  land.  Except  in  that 
case,  then,  there  is  no  need  of  any  other  count  ?  None 
whatever. 

The  plaintiff's  task  is  easy,  then.  He  states  a  promise 
founded  on  all  sorts  of  considerations,  proves  as  many  of 
them  as  he  can,  and  recovers  judgment  for  all  he  proves. 

I  low  is  the  defendant  to  plead  to  such  a  declaration  ? 
Whal  does  il  amount  to,  but  an  allegation  that  on  some 
account  not  specified  he  owes  the  plaintiff  money?  How 
can  he  know  whether  to  traverse  or  confess  and  avoid? 
What  equality  can  there  be  between  the  parties,  unless  he 
is  allowed  to  plead  in  the  same  vague  way  that  he  owes 
nothing?  Certainly  none,  and  he  must  therefore  be  fur- 
nished with  a  plea  as  general  and  sweeping  as  the  declara- 


THE    PRINCIPLES    OF    PLEADING.  121 

tion,  and  each  party  must  be  at  liberty  to  prove  what  he 
can. 

The  plea  of  non  assumpsit  is  such  a  plea.  It  is  as 
extensive  and  universal  as  the  declaration,  and  the  issue 
made  upon  it  turns  on  the  question  whether,  on  the  day  of 
the  writ  sued  out  such  a  state  of  facts  existed,  as  that  the 
law  would  imply  a  promise  on  the  part  of  the  defendant  to 
pay  the  plaintiff  any  sum  of  money  whatsoever.  The 
verdict  decides  this  issue  by  finding  for  the  defendant 
generally,  or  by  finding  for  the  plaintiff,  and  assessing  his 
damages  by  reason  of  the  breach  of  the  supposed  promise 
to  the  amount  which  the  defendant  ought  to  have  promised, 
and  is  implied  to  have  promised  to  pay. 

This,  I  think,  is  the  present  understanding  of  this 
matter.  But  while  the  action  was  in  a  state  of  transition 
the  awkward  and  unsuccessful  attempts  to  apply  to  it  the 
exact  and  rigid  rules  of  pleading  produced  a  great  deal  of 
confusion  in  the  whole  science.  To  remedy  this  I  hold  it 
to  be  expedient  to  separate  actions  on  the  case  from  other 
actions,  and  to  say  at  once  that  there  is  no  analogy  between 
them  and  any  other. 

Yet  this  remark  must  be  qualified  by  excepting  from  it 
actions  for  the  breach  of  a  promise  to  do  any  thing  else 
besides  paying  money.  In  these  as  much  particularity,  in 
setting  forth  the  facts  of  the  case  in  the  declaration,  is 
required  as  in  any  other  case  whatever,  and  the  least 
departure  from  the  truth  in  stating  either  the  promise  or 
the  consideration  will  be  fatal.  But  in  this  case,  while  the 
plaintiff  is  thus  tied  down,  the  defendant  has  all  the  benefit 
of  the  latitudinous  plea  of  non  assumpsit.  He  knows 
precisely  what  is  alleged  against  him,  but  the  plaintiff  has 
no  hint  whether  he  is  to  be  defeated  by  some  trifling 
discrepancy  between  his  alegata  and  his  probata,  or  by 
proof  of  performance  on  the  part  of  the  defendant,  or  of 
compromise,  or  infancy,  or  illegality  of  consideration,  or 
11 


122  THE    PRINCIPLES    OF    PLEADING. 

any  one  of  the  innumerable  defences  of  the  nature  of 
avoidance,  which  are  permitted  to  be  set  up  under  the 
plea  of  non  assumpsit. 

From  this  whole  view  of  the  action  of  assumpsit  it  may 
appear  that  while  the  pleadings  are  quite  simple,  just  in 
the  same  degree  are  the  rights  of  the  parties  uncertain 
and  precarious,  and  liable  to  be  defeated  by  surprise  or 
mistake  or  the  caprice  of  the  Jury.  That  the  law  in  this 
respect  requires  some  amendment  is  manifest.  The  ne- 
cessity of  reforming  it  has  been  acknowledged  in  England, 
and  has  led  to  some  changes  which  our  Legislators  would 
do  well  to  study. 

The  general  issue  of  not  guilty  in  actions  of  Tresspass 
on  the  case  in  form  ex  delicto  is  even  more  anomalous 
than  the  plea  of  non  assumpsit.  The  subject  of  the  action 
is  a  consequential  injury  to  the  plaintiff,  resulting  from 
some  act  of  the  defendant  not  directly  injurious.  This 
being  charged  on  the  defendant,  quasi  delictum,  he  says 
that  he  is  not  guilty.  This  may  be  because  he  did  not  do 
the  act  charged.  Or  it  may  be  that  although  he  did,  yet 
the  plaintiff  was  not  injured  by  it,  or  it  may  be  that  satis- 
faction has  been  made  for  the  injury,  or  the  cause  of  action 
has  been  released,  or  that  he  had  such  matter  of  excuse 
for  doing  the  act  that  the  plaintiff  has  no  right  to  com- 
plain although  damaged  in  consequence  of  it.  Now  as 
the  imaginary  guilt  is  imputed  to  him,  only  because  of  the 
injury  sustained  by  the  plaintiff,  any  one  of  these  matters, 
by  doing  away  the  injury,  removes  the  imputed  guilt,  and 
thus  his  plea  of  not  guilty  is  sustained  by  matter  of  excuse 
or  discharge.  Hence  there  is  hardly  any  imaginable  de- 
fence to  this  action  that  needs  to  be  specially  pleaded. 
In  this  particular  too  the  law  has  been  lately  amended  in 
England,  and  ought  to  be  amended  here. 

It  is  worthy  of  remark  that  nine  cases  in  ten,  in  which 
common  sense  is  outraged,  and  palpable  injustice  done 


THE    PRINCIPLES    OF    PLEADING.  123 

through  surprise,  blunders  of  counsel,  caprice  of  Juries,  or 
errors  of  Courts,  belong  to  this  anomalous  class  to  which 
the  strict  rules  of  pleading  cannot  be  effectually  applied. 

'  Lastly  the  general  issue,  non  cepit,  in  Replevin,  applies 
to  the  case  where  the  defendant  has  not  in  fact  taken  the 
goods,  or  where  he  did  not  take  them  or  have  them  in  the 
place  mentioned  in  the  declaration.  For  it  will  be  ob- 
served that  the  declaration  alleges  that  'the  defendant 
took  the  goods  of  the  plaintiff  in  a  certain  place  called ' 
&c.  and  the  general  issue  states  that  he  did  not  take  them 
'  in  manner  and  form  as  alleged  ; '  which  involves  a  denial 
both  of  the  taking  and  of  the  place  in  which  the  taking 
was  alleged  to  have  been  —  the  place  being  a  material 
point  in  this  action.' 

It  is  thus  that  Stephen  states  the  law  on  this  point.  How 
the  pleadings  may  be  affected  by  the  Virginia  Statute  on 
the  subject  of  distresses  I  shall  not  consider  in  this  place. 
I  am  not  aware  of  any  adjudications  throwing  light  on 
this  question,  but  I  do  not  hesitate  to  predict  that  our 
courts  will  find  themselves  in  inextricable  difficulty  if  they 
attempt  to  apply  the  law  of  Replevin  as  it  stands  in  Eng- 
land to  cases  arising  under  that  Statute. 

There  is  another  species  of  traverse  which  varies  from 
the  common  form,  and  is  confined  to  a  particular  stage  of 
actions  of  Trespass  or  of  trespass  on  the  case.  It  is  the 
form  of  the  replication  to  a  plea  of  justification  by  which 
the  matter  of  justification  is  denied,  and  is  called  the  tra- 
verse cle  injuria.  Thus  in  trespass,  assault,  and  battery, 
we  suppose  the  defendant  to  plead  thus : 

The  said  C.  D.  says  that  just  before  the  time  when  &c. 
the  said  A.  B.  with  force  and  arms  an  assault  on  the  said 
C.  D.  made,  and  would  then  and  there  have  beaten  him, 
if  he  had  not  immediately  defended  himself  against  the 
said  A.  B. :  wherefore  the  said  C.  D.  did  then  and  there 
defend  himself  against  the  said  A.  B.  and  in  so  doing  did 


124  THE    PRINCIPLES    OF    PLEADING. 

necessarily  and  unavoidably  a  little  beat  the  said  A.  B. 
doing  no  unnecessary  damage  to  the  said  A.  B.  And  so 
the  said  C.  D.  says  that  if  any  hurt  or  damage  then 
and  there  happened  to  the  said  A.  B.  the  same  was  occa- 
sioned by  the  assault  so  made  by  the  said  A.  B.  on  him  the 
said  C.  D.  and  in  the  necessary  defence  of  the  said  C.  D. 
against  the  said  A.  B.  which  are  the  supposed  trespasses 
whereof  the  said  A.  B.  has  above  complained ;  and  this  he 
is  ready  to  verify.  Wherefore  he  prays  judgment  if  the  said 
A.  B.  ought  to  have  or  maintain  his  action  thereof  against 

him.'  Qf{tf*<fcn  - 

The  plaintiff  proposing  to  traverse  this  obligation  uses 
the  following  form. 

1  The  said  A.  B.  says  that  the  said  C.  D.  of  his  own 
wrong,  and  without  the  cause  in  Ms  plea  alleged  committed 
the  said  several  trespasses  in  the  said  plea  mentioned  in 
manner  and  form  as  the  said  A.  B.  has  above  complained, 
and  this  he  prays  may  be  enquired  of  by  the  Country.' 

'  In  these  actions  of  Trespass  and  Trespass  on  the  case, 
when  the  plea  consists  of  mere  matter  of  excuse,  this  is 
the  proper  form  for  traversing  it.  But  when  it  comprises 
matter  of  Title  or  Interest  in  Land  or  the  Commandment 
of  another,  or  Authority  of  Law,  or  Authority  in  fact 
derived  from  the  opposite  party,  or  matter  of  Record,  in 
any  of  these  cases  the  Replication  de  injuria  is  generally 
improper  ;  and  the  traverse  of  these  matters  should  be  in 
the  common  form,  that  is  in  the  words  of  the  allegation 
traversed.' 

It  remains  to  speak  of  a  particular  kind  of  Traverse 
known  by  the  name  of  '  special  traverse.'  Though  much 
indisposed  to  swell  this  little  work  by  passages  taken  from 
a  book  which  ought  to  be  in  the  hands  of  every  member 
of  the  profession,  1  hope  to  be  excused  for  inserting  Mr. 
Stephen's  account  of  this  matter,  which  is  the  only  intelli- 
gible exposition  that  I  know  of. 


THE    PRINCIPLES    OF    PLEADING.  125 

1  There  is  still  another  species  of  traverse,  which  differs 
from  the  common  form,  and  which  will  require  distinct 
notice.  It  is  known  by  the  denomination  of  a  special 
traverse*  Though  formerly  of  very  frequent  occurrence, 
this  species  has  now  fallen,  in  great  measure,  into  disuse ; 
but  the  subtlety  of  its  texture,  its  tendency  to  illustrate 
the  general  spirit  and  character  of  pleading,  and  the  total 
dearth  of  explanation  in  all  the  reports  and  treatises,  with 
respect  to  its  principle,  seem  to  justify  the  consideration  of 
it,  at  greater  length,  and  in  a  more  elaborate  manner,  than 
its  actual-  importance  in  practice,  demands.  Of  the  special 
traveFse,  the  following  is  an  example  :  — 

'Example  1. 

DECLARATION. 

IN   COVENANT    FOR   NON-PAYMENT    OF    RENT;    BY  THE   HEIR  OF  A 
LESSOR,  AGAINST  A   LESSEH. 

to  wit,  C.  D.  was  summoned  to  answer  A.  B.,  son  and 


heir  of  E.  B.  his  late  father  deceased,  of  a  plea,  that  he  keep  with  the 
said  A.  B.  the  covenant  made  hy  the  said  C.  D.  with  the  said  K  B., 
according  to  the  force,  form,  and  effect  of  a  certain  indenture  in  that 

behalf  made  between  them.    And  thereupon,  the  said  A.  B.,  by , 

his  attorney,  complains:  —  For  that  whereas  the  said  E.  B.,  at  the 
time  of  making  the  indenture  hereinafter  mentioned,  was  seised  in  his 
demesne  as  of  fee,  of  and  in  the  premises  hereinafter  mentioned  to  be 
demised  to  the  said  C.  D.    And  being  so  seised,  he,  the  said  E.  B.,  in 

his  life  time,  to  wit,  on  the day  of ,  in  the  year  of 

our  Lord at ,  in  the  county  of ,  by  a  certain 

indenture  then  and  there  made  between  the  said  E.  B.  of  the  one  part, 
and  the  said  C.  D.  of  the  other  part,  (one  part  of  which  said  indenture, 
sealed  with  the  seal  of  the  said  C.  D.,  the  said  A.  B.  now  brings  here 
into  court,  the  date  whereof  is  the  day  and  year  aforesaid,)  for  the  con- 
siderations therein  mentioned,  did  demise,  lease,  set,  and  to  farm  let, 
unto  the  said  C.  D.,  his  executors,  administrators,  and  assigns,  a  certain 

messuage,  or  dwelling-house,  with  the  appurtenances,  situate  at , 

to  have  and  to  hold  the  same  unto  the  said  C.  D.,  his  executors,  admin- 
istrators, and  assigns,  from  the day  of ,  then  last  past, 

*  It  is  also  called  a  formal  traverse ;  or,  a  traverse  with  an  absque  hoc 
11* 


126  THE    PRINCIPLES    OF    PLEADING. 

to  the  full  end  and  term  of years  thence  next  ensuing,  and 

fully  to  he  complete  and  ended,  yielding  and  paying  therefore  yearly, 
and  every  year,  to  the  said  E.  B.,  his  heirs  or  assigns,  the  clear  yearly 

rent  or  sum  of pounds,  payable  quarterly,  at  the  four  most 

usual  feasts,  or  days  of  payment  of  rent,  in  the  year,  that  is  to  say,  on 
the  25th  day  of  March,  the  24th  day  of  June,  the  29th  day  of  Septem- 
ber, and  the  25th  day  of  December,  in  each  and  every  year,  in  equal 
portions.  And  the  said  C.  J),  did  thereby  for  himself,  his  executors, 
administrators,  aud  assigns,  covenant,  promise,  and  agree,  to  and  with 
the  said  E.  B.,  his  heirs  and  assigns,  that  he,  the  said  C.  D.,  his  exec- 
utors, administrators,  or  assigns,  should  and  would  well  and  truly  pay, 
or  cause  to  be  paid,  to  the  said  E.  B.,  his  heirs  or  assigns,  the  said 

yearly  rent  or  sum  of pounds,  at  the  several  day  and  times 

aforesaid ;  as  by  the  said  indenture,  reference  being  thereunto  had,  will 
more  fully  appear.    By  virtue  of  which  said  demise,  the  said  C.  D. 

afterwards,  to  wit,  on  the day  of ,  in  the  year , 

entered  into  the  said  premises,  and  was  thereof  possessed  for  the  said 
term,  the  reversion  thereof  belonging  to  the  said  E.  B.  and  his  heirs. 
And  he  the  said  C.  D.,  being  so  possessed,  and  the  said  E.  B.  being  so 
seised  of  the  said  reversion  in  his  demesne  as  of  fee,  he,  the  said  E.  B. 

afterwards,  to  wit,  on  the day  of ,  in  the  year  aforesaid, 

at ,  aforesaid,  in  the  county  aforesaid,  died  so  seised  of  the 

said  reversion.  After  whose  decease,  the  said  reversion  descended  to 
the  said  A.  B.,  as  son  and  heir  of  the  said  E.  B. ;  whereby  the  said 
A.  B.  was  seised  of  the  reversion  of  the  said  demised  premises  in  his 
demesne  as  of  fee.  And  the  said  A.  B.  in  fact  says,  that  he,  the  said 
A.  B.,  being  so  seised,  and  the  said  C.  D.  being  so  possessed  as  afore- 
said, afterwards,  and  during  the  said  term,  to  wit,  on  the day  of 

,  in  the  year  of  our  Lord ,  at ,  in  the  county 

of ,  a  large  sum  of  money,  to  wit,  the  sum  of pounds 

of  the  rent  aforesaid,  for  divers  to  wit, years  of  the  said  term  then 

elapsed,  became  and  was  due  and  owing,  and  still  is  in  arrear,  and 
unpaid  to  the  said  A.  B.,  contrary  to  the  form  and  effect  of  the  said 
covenant  in  that  behalf.  And  so,  the  said  A.  B.  in  fact  saith,  that  the 
said  C.  D.,  (although  often  requested)  hath  not  kept  his  said  covenant 
in  that  behalf,  but  hath  broken  the  same,  and  to  keep  the  same,  hath 
hitherto  wholly  refused,  and  still  refuses ;  to  the  damage  of  the  said 
A.  B.  of pounds ;  and,  therefore,  he  brings  his  suit,  &c. 

PLEA. 

'  And  the  said  C.  D.,  by his  attorney,  comes  and  defends 

the  wrong  and  injury,  when,  &c,  and  says,  that  the  said  A.  B.,  ought 


THE    PRINCIPLES    OF    PLEADING.  127 

not  to  have  or  maintain  his  aforesaid  action  against  him,  because  he 
says  that  the  said  E.  B.  deceased,  at  the  time  of  the  making  of  the  said 
indenture,  was  seised  in  his  demesne,  as  of  freehold  for  the  term  of  his 
natural  life,  of  and  in  the  said  demised  premises,  with  the  appurte- 
nances, and  continued  so  seised  thereof  until  and  at  the  time  of  his 
death ;  and  that,  after  the  making  of  the  said  indenture,  and  before  the 

expiration  of  the  said  term,  to  wit,  on  the day  of ,  in  the 

year  of  our  Lord ,  at aforesaid,  the  said  E.  B. 

died ;  whereupon  the  term  created  by  the  said  indenture  wholly  ceased 
and  determined :  Without  this,  that,  after  the  making  of  the  said  inden- 
ture, the  reversion  of  the  said  demised  premises  belonged  to  the  said 
E.  B.  and  his  heirs,  in  manner  and  form  as  the  said  A.  B.  hath,  in  his 
said  declaration,  alleged.  And  this  the  said  C.  D.  is  ready  to  verify. 
Wherefore  he  prays  judgment,  if  the  said  A.  B.  ought  to  have  or  main- 
tain his  aforesaid  action  against  him.* 

1  The  substance  of  this  plea,  is,  that  the  father  was  seised 
for  life  only,  and  therefore  that  the  term  determined  at  his 
death ;  which  involves  a  denial  of  the  allegation  in  the 
declaration,  that  the  reversion  belonged  to  the  father  in 
fee.  The  defendant's  course  was,  therefore,  to  traverse 
the  declaration.  But  it  will  be  observed  that  he  does  not 
traverse  it  in  the  common  form.  If  the  common  traverse 
were  adopted  in  this  case,  the  plea  would  be  — '  And  the 

said  C.  D.,  by his  attorney  comes  and  defends  the 

wrong  and  injury,  when  &c,  and  says,  that  the  said  A.  B. 
ought  not  to  have  or  maintain  his  aforesaid  action  against 
him,  because  he  says,  that  after  the  making  of  the  said 
indenture,  the  said  reversion  of  the  said  demised  premises, 
did  not  belong  to  the  said  E.  B.  and  his  heirs,  in  manner 
and  form  as  the  said  A.  B.  hath,  in  his  said  declaration, 
alleged.  And  of  this  the  said  C.  D.  puts  himself  upon  the 
country.'  But  instead  of  this  simple  denial,  and  tender  of 
issue,  the  defendant  adopts  a  special  traverse.  This  first 
sets  forth  the  new  affirmative  matter,  that  E.  B.  was  seised 

*  2  Chitty,  500.  1st  edit. ;  and  see  Brudnell  v.  Roberts,  2  Wills.  143. 
Palmer  v.  Ekins,  Lord  Ray,  1550. 


128  THE    PRINCIPLES    OF    PLEADING. 

for  life,  &c. ;  —  and  then  annexes  to  this,  the  denial  that 
the  reversion  belonged  to  him  and  his  heirs,  by  that  pecu- 
liar and  barbarous  formula,  Without  this,  that,&c. ; —  and 
lastly,  does  not,  (like  a  common  traverse)  tender  issue,  but 
concludes  with  the  words,  '  And  this  the  said  C  D.  is  ready 
to  verify :  wherefore  he  prays  judgment,'  &c. ;  which  is 
called  a  verification  and  prayer  of  judgment ;  and  is  the 
constant  conclusion  of  all  pleadings  in  which  issue  is  not 
tendered.  The  affirmative  part  of  the  special  traverse,  is 
called  its  inducement;*  the  negative  part  is  called  the 
absque  hoc,  —  those  being  the  Latin  words  formerly  used, 
and  from  which  the  modern  expression,  ivithout  this,  is 
translated.  The  different  parts  and  properties  here  noticed, 
are  all  essential  to  a  special  traverse ;  which  must  always 
thus  consist  of  an  inducement,  a  denial,  and  a  verification.! 

'  By  way  of  further  illustration,  and  as  the  foundation  for 
some  subsequent  remarks  on  the  nature  and  meaning  of  a 
special  traverse,  it  will  be  necessary  here  to  add  some  other 
examples  of  this  form  of  pleading. 

'Example  2. 

PLEA. 

IN   TRESPASS    QUARE    CLAUSDM   FREGIT. 

'  And  for  a  further  pica,  as  to  the  breaking  and  entering  the  said 
close,  in  which,  &c,  and  the  treading  down,  trampling  upon,  consum- 
ing, and  spoiling,  the  said  grass  and  herbage,  as  above  supposed  to 
have  been  done,  the  said  C.  D.,bj  leave  of  the  court  here  for  this  pur- 
pose first  had  and  obtained,  according  to  the  form  of  the  statute  in  such 
case  made  and  provided,  says  that  the  said  A.  B.  ought  not  to  have  or 
maintain  bis  a  foresaid  action  thereof  against  him,  because  he  says,  that 

before  tlie  said  time  when,  &c,  to  wit,  on  the day  of 

is  the  year ,  one  I.  N.,  clerk,  prebendary  of  the  prebend  of  N. 

*  Bao.  Ah.  Tleas,  &c.  (H.  1.) 

J  The  denial,  however,  may  be  introduced  by  other  forms  of  expres- 
sion besides  absque  hoc.  Et  nou  will  suffice.  Bonnet  v.  Filkins,  1  Saund. 
21.     Walters  v.  Hodges,  Lut.  1G25. 


THE    PRINCIPLES    OF    PLEADING.  129 

in  the  cathedral  church  of  H.,  was  seised  in  his  demesne,  as  of  fee,  in 
right  of  the  said  prebend,  of  and  in  certain  tenements,  whereof  the  said 
close  in  which,  &c,  then  and  from  thenceforth  hitherto,  hath  been 
parcel.    And  being  so  seised,  before  the  said  time  when,  &c,  to  wit,  on 

the  day  and  year  last  aforesaid,  at aforesaid,  in  the  county 

aforesaid,  by  a  certain  indenture,  sealed  with  the  seal  of  the  said  I.  N. 
(and  now  shown  to  the  Court  here,  the  date  whereof  is  the  day  and 
year  last  aforesaid,)  the  said  I.  N.  demised  the  said  tenements,  with 
the  appurtenances  (among  other  things.)  to  the  said  C.  D.,  by  the  name 
of  all  his  prebend  of  N.  aforesaid,  &c.,  to  have  and  to  hold  to  the  said 

C.  D.  and  his  assigns,  from  the day  of ,  then  next,  to 

the  end  and  term  of  fifty  years  thence  next  following,  yielding  and  pay- 
ing therefore  yearly,  during  the  said  term,  to  the  said  prebendary  and 

his  successors,  the  sum  of pounds,  at  the  feasts  of > 

and by  equal  portions.    By  virtue  of  which  demise,  the  said 

C.  D.  was  possessed  (among  other  things)  of  the  said  tenements,  with 
the  appurtenances.    And,  being  so  possessed,  one  I.  H.,  bishop  of 

,  then  being  true  and  undoubted  patron  and  ordinary  of  the 

said  prebend  of  N.,  afterwards,  to  wit,  on  the day  of , 

in  the  year ,  at ,  by  his  writing,  sealed  with  his  common 

seal  (and  now  shown  to  the  Court  here,  the  date  whereof  is  the  day  and 
year  last  aforesaid,)  ratified,  approved,  and  confirmed  the  said  estate 
and  interest  of  the  said  C.  T).  in  the  premises.  And  afterwards,  one 
/.  E.,  master  of  arts,  dean  of  the  said  cathedral  church,  and  the  chapter 

of  the  said  church  for  the  time  being*  to  wit,  on  the day  of 

,  in  the  year ,  at ,  by  their  writing,  sealed 

with  their  common  seal  (and  now  shown  to  the  court  here,  the  date 
whereof  is  the  day  and  year  last  aforesaid,)  ratified,  approved,  and  con- 
firmed the  said  estate  and  interest  of  the  said  C.  D.  in  the  premises. 
And  the  said  A.  B.,  claiming  the  said  tenements,  with  the  appurte- 
nances, by  color  of  a  certain  charter  of  demise  to  him  thereof  made  for 
the  term  of  his  life,  by  the  said  I.  2V.,  long  before  the  said  demise  to  the 
said  C.  D.,  in  form  aforesaid  made  (whereas  nothing  of  the  said  tene- 
ments with  the  appurtenances,  ever  passed  into  the  possession  of  the 
said  A.  B.  by  that  charter.)  before  the  said  time  when,  &c,  entered  into 
the  said  tenements,  with  the  appurtenances ;  upon  whose  possession 
whereof  the  said  C.  D.  at  the  said  time  when  &c,  entered  into  the  said 
tenement,  with  the  appurtenances,  and  broke  and  entered  the  said  close 
in  which,  &c.,  and  trod  down,  trampled  upon,  consumed,  and  spoiled 

*  If  the  Bishop  happen  to  he  patron,  as  well  as  the  ordinary,  the  con- 
firmation of  the  dean  and  chapter,  as  well  as  the  bishop,  is  necessary. 
Co.  Lilt.  300  b. 


130  THE    PRINCIPLES    OF    PLEADING. 

the  grass  and  herbage  there  growing  and  being,  as  it  was  lawful  for 
him  to  do,  for  the  cause  aforesaid ;  which  are  the  same  trespasses  in 
the  introductory  part  of  this  plea  mentioned,  and  whereof  the  said  A.  B. 
hath  above  complained.  And  this  the  said  C.  D.  is  ready  to  verify. 
Wherefore  he  prays  judgment  if  the  said  A.  B.  ought  to  have  or  main- 
tain his  aforesaid  action  against  him.  &c. 


REPLICATION. 

'  And  as  to  the  said  plea,  by  the  said  C.  D.  last  above  pleaded,  as  to 
the  said  several  trespasses  in  the  introductory  part  of  that  plea  men- 
tioned, the  said  A.  B.  says,  that  by  reason  of  any  thing  therein  alleged, 
he  ought  not  to  be  barred  from  having  and  maintaining  his  aforesaid 
action  thereof  against  him ;  because,  protesting  that  the  said  I.  N.  did 
not  demise  the  said  tenements,  with  the  appurtenances  to  the  said  C.  JD. 
as  the  said  C.  D.  hath  above  alleged.    For  replication,  nevertheless,  in 

this  behalf,  the  said  A.  B.  says,  that  the  said  C.  D.,  on  the  said 

day  of ,  in  the  year ,  at aforesaid,  in  the 

county  aforesaid,  brought  to  the  said  bishop  a  certain  writing  of  demise 
of  the  said  tenements  by  the  said  I.  N.  to  the  said  C.  D.,  and  then  and 
there  desired  the  said  bishop  to  confirm  the  said  writing,  sealed  with 
the  seal  of  the  said  I.  N.;  k\  which  writing  no  number  of  years  was 
then  written,  which  the  said  C.  D.  was  to  have  in  the  said  tenements ; 
■which  said  writing  of  demise  the  said  bishop  then  and  there  confirmed ; 
and  sealed  the  said  writing  with  his  seal.    And  before  the  said  time, 

when,  &c,  to  wit,  on  the day  of ,  in  the  year , 

at aforesaid,  in  the  county  aforesaid,  the  said  I.  N.  died. 

After  whose  death,  and  before  the  said  time,  when,  &c,  the  said  bishop, 
as  the  true  and  undoubted  patron  and  ordinary  of  the  said  prebend  so 
being  vacant  by  the  death  of  the  said  I.  K,  collated  the  same  on  his 
clerk,  the  said  A.  J5.,  and  caused  him  to  be  justly  instituted  and  inducted, 
and  put  in  corporeal  possession  of  the  said  prebend.  Whereby  the  said 
A.  B.,  was  seised  of  the  said  tenements,  with  the  appurtenances,  in  his 
demesne,  as  of  fee,  in  right  of  his  said  prebend,  until  the  said  C.  D.,  on 

die day  of ,  in  the  year ,  with  force  and 

arms  broke  and  entered  the  close  of  the  said  A.  B.,  at afore- 
said, and  trod  down,  trampled  upon,  consumed,  anil  spoiled,  the  grass 

anil  herbage  therein,  to  value  of pounds,  as  he  hath  above 

complained.  Without  this,  that  the  said  bishop,  by  his  said  writing, 
ratified,  approved,  and  confirmed  the  estate  and  interest  of  the  said 
C.  D.  in  llic  premises,  in  manner  and  form  as  the  said  C.  D.  hath,  in 
his  said  last-mentioned  plea,  alleged.   And  this  the  said  A.  B.  is  ready 


THE    PRINCIPLES    OF    PLEADING.  131 

to  verify.  Wherefore  lie  prays  judgment,  and  lus  damages  by  him 
sustained,  by  reason  of  the  said  trespasses,  in  the  introductory  part  of 
that  plea  mentioned,  to  be  adjudged  to  him,  &c* 

'In  both  the  preceding  examples,  it  will  be  observed, 
that  the  inducement  contains  new  affirmative  matter.  But 
a  special  traverse  may  also  occur  in  cases  where  the  denial 
is,  in  its  nature,  unconnected  with  any  new  affirmative 
matter  that  can  be  stated  by  way  of  inducement.  Of  this, 
the  following  is  an  example  : 

'Example  3. 

PLEA. 

IN  TRESPASS,  QUAKE  CLAUSUM  FREGIT. 

1  And  for  a  further  plea  in  this  behalf,  as  to  the  breaking  and  enter- 
ing the  said  close,  in  which,  &c,  and  with  feet  in  walking,  treading 
down,  trampling  upon,  consuming,  and  spoiling  the  said  grass,  as  above 
supposed  to  have  been  done,  the  said  C.  D.,  by  leave  of  the  court  here 
for  this  purpose  first  had  and  obtained,  according  to  the  form  of  the 
statute  in  such  case  made  and  provided,  says,  that  the  said  A.  B.  ought 
not  to  have  or  maintaining  aforesaid  action  thereof  against  him ;  because 
he  says,  that  one  W.  F.,  before  and  at  the  same  time,  when,  &c,  was. 
and  yet  is,  seised  in  his  demesne,  as  of  fee,  of  and  in  a  certain  messuage 
or  tenement  and  lands,  with  the  appurtenances,  situate  and  being  at 

,  in  the  county  aforesaid.     And  that  the  said  W.  F.,  and  all 

those  whose  estate  he  hath,  and  at  the  same  time,  when,  &c,  had  of 
and  in  the  said  messuage  or  tenement  and  lands,  with  the  appurte- 
nances, from  time  whereof  the  memory  of  man  is  not  to  the  contrary, 
have  had  and  used,  and  been  accustomed  to  have  and  use,  and  of  right 
ought  to  have  and  use,  for  himself  and  themselves,  and  his  and  their 
farmers  and  tenants,  occupiers  of  the  said  messuage  or  tenement  and 
lands,  with  the  appurtenances,  for  the  time  being,  a  certain  way  from 
the  said  messuage  or  tenement  and  lands,  with  the  appurtenances,  into, 
through  and  over  the  said  close,  in  which,  &c,  unto  a  certain  place 

called ;  and  so  from  thence  back  again  into,  through  and 

over  the  said  close,  in  which,  &c,  unto  the  said  messuage  or  tenement 
and  lands,  with  the  appurtenances,  to  go,  return,  pass  and  repass  on 
foot,  at  all  times  of  the  year,  at  his  and  their  free  will  and  pleasure,  as 

*  See  the  precedent  PI.  Gen.  602. 


132  THE    PRINCIPLES    OF    PLEADING. 

to  the  said  messuage  or  tenement  and  lands,  with  the  appurtenances, 
belonging  and  appertaining.  Wherefore  the  said  C.  D.,  as  the  servant 
of  the  said  W.  F.,  and  by  his  command,  at  the  said  several  times,  when, 
&c,  having  occasion  to  use  that  way,  broke  and  entered  the  said  close, 
in  which,  &c,  and  passed  and  repassed  on  foot  through  and  over  the 
said  way  there,  using  the  said  way,  for  the  purpose  and  on  the  occasion 
aforesaid,  as  it  was  lawful  for  him  to  do  for  the  cause  aforesaid.  And 
in  so  doing,  the  said  C.  D.  necessarily  and  unavoidably,  at  the  said 
time,  when,  &c,  with  his  feet  in  walking,  trod  down,  trampled  upon, 
consumed  and  spoiled  a  little  of  the  grass  then  growing  and  being  in 
the  said  way  there ;  doing  as  little  damage  as  he  possibly  covdd  to  the 
said  A.  B.  on  that  occasion.  Which  ar-e  the  same  supposed  trespasses 
in  the  introductory  part  of  this  plea  mentioned,  and  whereof  the  said 
A.  B.  hath  above  complained.  And  this  the  said  C.  D.  is  ready  to 
verify.  Wherefore  he  prays  judgment,  if  the  said  A.  B.  ought  to  have 
or  maintain  his  aforesaid  action  thereof  against  him,  &c. 

REPLICATION. 

1  And  as  to  the  said  plea  by  the  said  C.  D.  last  above  pleaded,  as  to 
the  several  trespasses  in  the  introductory  part  of  that  plea  mentioned, 
the  said  A.  B.  says,  that  by  reason  of  any  thing  therein  alleged,  he  ought 
not  to  be  barred  from  having  and  maintaining  his  aforesaid  action 
thereof  against  him ;  because  the  said  A.  B.  says,  that  he  the  said  C.  D. 
of  his  own  wrong,  broke  and  entered  the  said  close,  in  which,  &c,  and 
with  feet  in  walking,  trod  down,  trampled  upon,  consumed  and  spoiled 
the  grass  there  then  growing  and  being,  as  the  said  A.  B  hath  above 
complained.  Without  this,  that  the  said  W.  F,  and  all  those  whose 
estate  lie  hath,  and  at  the  said  several  times,  when,  &c,  had  of  and  in 
the  said  messuage,  or  tenement  and  lands,  with  the  appurtenances, 
from  time  whereof  the  memory  of  man  is  not  to  the  contrary,  have  had 
and  used,  and  been  accustomed  to  have  and  use,  and  of  right  ought  to 
have  and  use,  for  himself  and  themselves,  and  his  and  their  farmers 
and  tenants,  occupiers  of  the  said  messuage,  or  tenement  and  lands, 
with  the  appurtenances,  for  the  time  being,  a  certain  way  from  the  said 
messuage,  or  tenement  and  lands,  with  the  appurtenances,  into,  through 

and  over  the  s:\i<l  close,  ill  which,  &C.,  unto  a  certain  place  called , 

and  so  from  thence  back  again,  into,  through,  and  over  the  said  close, 
in  which,  &c.,  unto  the  said  messuage,  or  tenement  and  lands,  with  the 
appurtenances,  to  go,  return,  pass  and  repass  on  foot,  at  all  times  of 
the  year,  at  his  and  their  free  will  and  pleasure,  as  to  the  said  messuage, 
or  tenement  and  lands,  with  the  appurtenances,  belonging  and  apper- 
taining, in  manner  and  form  as  the  said  C.  J),  hath  in  his  said  last- 


THE    PRINCIPLES    OF    PLEADING.  133 

mentioned  plea  alleged.  And  this  the  said  A.  B.  is  ready  to  verify. 
Wherefore  he  prays  judgment,  and  his  damages  hy  him  sustained  by 
reason  of  the  said  trespasses,  in  the  introductory  part  of  that  plea  men- 
tioned, to  be  adjudged  to  him,  &c* 

'  In  this  last  example,  it  will  be  observed  that  there  is  no 
new  affirmative  matter  contained  in  the  inducement.  For 
it  consists  of  a  mere  repetition  of  the  trespasses  that  had 
been  antecedently  alleged  in  the  declaration,  and  an  alle- 
gation that  they  were  committed  de  injuria  sua  propria,  or 
of  the  defendant's  own  wrong.  In  this  respect,  therefore, 
viz.  in  the  want  of  new  affirmative  matter  in  the  induce- 
ment, this  last  example  differs  from  the  two  first  given. 

1  The  regular  method  of  pleading,  in  answer  to  a  special 
traverse,  is  to  tender  issue  upon  it,  with  a  repetition  of  the 
allegation  traversed.  Accordingly,  in  the  first  example, 
issue  would  be  tendered  in  the  replication  —  thus : 

REPLICATION. 

'  And  as  to  the  said  plea  by  the  said  C.  D.  above  pleaded,  the  said 
A.  B.  says,  that  by  reason  of  any  thing  therein  alleged,  he  ought  not 
to  be  barred  from  having  and  maintaining  his  aforesaid  action  against 
the  said  C.  D.,  because  the  said  A.  B.  says,  that  after  the  making  of 
the  said  indenture,  the  reversion  of  the  said  demised  premises  belonged 
to  the  said  E.  B.  and  his  heirs,  in  manner  and  form  as  the  said  A.  B. 
hath  in  his  said  declaration  above  alleged.  And  this  he  prays  may  be 
inquired  of  by  the  country. 

'  And  so  in  the  remaining  examples,  issue  would  be  ten- 
dered in  the  rejoinder,  by  a  similar  repetition  of  the  matter 
which  the  traverse  denies. 

'  It  will  be  perceived  therefore,  that  the  effect  of  a  special 
traverse  is,  to  postpone  the  issue  to  one  stage  of  the  plead- 
ing later  than  it  would  be  attained  by  a  traverse  in  the 
common  form.  For,  if  the  defendant  had,  in  the  first  ex- 
ample, traversed  without  an  inducement,  and  concluded  to 

*  See  the  precedents,  9  Went.  233.  238. 
12 


134  THE    PRINCIPLES    OF    PLEADING. 

the  country,  it  would  only  have  remained  for  the  plaintiff 
to  add  the  similiter  —  so  that  the  issue  would  have  been 
joined  in  the  replication.  On  the  other  hand,  upon  the 
plan  of  special  traverse,  the  issue  is  not  tendered  till  the 
replication ;  and  consequently,  the  similiter  still  remains  to 
be  added  in  a  rejoinder  by  the  defendant. 

'  The  use  and  object  of  a  special  traverse,  is  the  next 
subject  for  consideration.  Though  this  relic  of  the  subtle 
genius  of  the  ancient  pleaders,  has  now  fallen  (as  above 
stated)  into  comparative  disuse,  it  is  still  of  occasional 
occurrence ;  and  it  is  remarkable,  therefore,  that  no  author 
should  have  hitherto  offered  any  explanation  of  the  objects 
for  which  it  was  originally  devised,  and,  in  a  view  to  which, 
it  continues  to  be,  in  some  cases,  adopted.  The  following 
remarks  are  submitted,  as  those  which  have  occurred  to 
the  writer  of  this  work,  on  a  subject  thus  barren  of  better 
authority.  The  general  design  of  a  special  traverse,  as 
distinguished  from  a  common  one,  is  to  explain  or  qualify 
the  denial,  instead  of  putting  it  in  the  direct  and  absolute 
form ;  and  there  were  several  different  views,  in  reference 
to  one  or  other  of  which,  the  ancient  pleaders  seem  to  have 
been  induced  to  adopt  this  course. 

'  First.  A  simple  or  positive  denial,  may,  in  some  cases, 
be  rendered  improper,  by  its  opposition  to  some  general 
rule  of  law.  Thus,  in  the  example  of  special  traverse  first 
above  given,  it  would  be  improper  to  traverse  in  the  com- 
mon form ;  viz.  '  that  after  the  making  of  the  said  inden- 
ture, the  reversion  of  the  said  demised  premises,  did  not 
belong  to  the  said  E.  B.  and  his  heirs,'  &c. ;  because,  by  a 
rule  of  law,  a  tenant  is  precluded,  (or,  in  the  language  of 
pleading,  estopped,)  from  alleging  that  his  lessor  had  no 
title  in  the  premises  demised ;  *  and  a  general  assertion 
that  the  reversion  did  not  belong  to  him  and  his  heirs, 
would  seem  to  fall  within  the  prohibition  of  that  rule.    But 

*  Blake  v.  Foster,  8  T.  R.  487. 


THE    PRINCIPLES     OF    PLEADING.  135 

a  tenant  is  not  by  law  estopped  to  say  that  his  lessor  had 
only  a  particular  estate,  which  has  since  expired.*  In  a 
case,  therefore,  in  which  the  declaration  alleged  a  seisin  in 
fee  in  the  lessor,  and  the  nature  of  the  defence  was,  that 
he  had  a  particular  estate  only  (e.  g.  an  estate  for  life,) 
since  expired,  the  pleader  would  resort,  as  in  the  first 
example,  to  a  special  traverse  —  setting  forth  the  lessor's 
limited  title,  by  way  of  inducement,  and  traversing  his 
seisin  of  the  reversion  in  fee,  under  the  absque  hoc.  He 
thus  would  avoid  the  objection  that  might  otherwise  arise 
on  the  ground  of  estoppel. 

1  Secondly.  A  common  traverse  may  sometimes  be  inex- 
pedient, as  involving,  in  the  issue  in  fact,  some  question 
which  it  would  be  desirable  rather  to  develope,  and  submit 
to  the  judgment  of  the  court,  as  an  issue  in  laiv .  This  may 
be  illustrated  by  the  second  example  of  special  traverse, 
above  given.  In  that  case,  it  would  seem  that  a  lease  not 
expressing  any  certain  term  of  demise,  had  been  brought 
to  the  ordinary  for  his  confirmation  ;  that  he  had  accord- 
ingly confirmed  it  in  that  shape,  under  his  seal ;  and  that 
the  instrument  was  afterwards  filled  up  as  a  lease  for  fifty 
years.  The  party  relying  upon  this  lease,  states  that  the 
demise  was  to  the  defendant  for  the  term  of  fifty  years  — 
and  that  the  ordinary,  '  ratified,  approved,  and  confirmed, 
his  estate  and  interest  in  the  premises.'!  If  the  opposite 
party  were  to  traverse  in  the  common  form  — '  that  the 
ordinary  did  not  ratify,  approve  and  confirm  his  estate  and 
interest  in  the  premises,  &c.'  and  so  tender  issue  in 
fact,  on  that  point,  —  it  is  plain  that  there  would  be  in- 
volved, in  such  issue,  the  following  question  of  law ;  viz. 

*  Blake  v.  Foster,  8  T.  R.  487. 

t  This  case  would  seem  to  have  arisen  before  the  restraining  statutes  ; 
since  which,  a  lease  by  ecclesiastical  persons,  even  with  confirmation, 
is  good  for  no  longer  period  than  twenty-one  years,  or  three  lives.  2  Bl. 
Com.  320. 


136  THE    PRINCIPLES    OF    PLEADING. 

whether  the  confirmation  by  the  ordinary,  of  a  lease  in 
which  the  length  of  the  term,  is  not,  at  the  time  expressed, 
be  valid  ?  This  question  would,  therefore,  fall  under  the 
decision  of  the  jury,  to  whom  the  issue  in  fact  is  referred  ; 
subject  to  the  direction  of  the  judge  presiding  at  nisi  prius, 
and  the  ultimate  revision  of  the  court  in  bank.  Now  it 
may,  for  many  reasons,  be  desirable  that,  without  going  to ' 
a  trial,  this  question  should  rather  be  brought  before  the 
court,  in  the  first  instance ;  and  that,  for  that  purpose,  an 
issue  in  law  should  be  taken.  The  pleader,  therefore,  in 
such  a  case,  would  state  the  circumstances  of  the  transac- 
tion, in  an  inducement  —  substituting  a  special  for  a  com- 
mon traverse.  As  the  whole  facts  thus  appear  on  the  face 
of  the  pleading,  if  his  adversary  means  to  contend  that  the 
confirmation  was,  under  the  circumstances,  valid  in  point 
of  law,  he  is  enabled  by  this  plan  of  special  traverse,  to 
raise  the  point  by  demurring  to  the  replication ;  on  which 
demurrer,  an  issue  in  law  arises  for  the  adjudication  of  the 
court. 

'  By  these  reasons,  and  sometimes  by  others  also,  which 
the  reader,  upon  examination  of  different  examples,  may, 
after  these  suggestions,  readily  discover  for  himself,  the 
ancient  pleader  appears  to  have  been  actuated  in  his  fre- 
quent adoption  of  an  inducement  of  new  affirmative  matter, 
tending  to  explain  or  qualify  the  denial.  But  though  these 
reasons  seem  to  shew  the  purpose  of  the  inducement,  they 
do  not  account  for  the  two  other  distinctive  features  of  the 
special  traverse  —  viz.  the  absque  hoc,  and  the  conclusion 
unth  a  verification.  For  it  will  naturally  suggest  itself, 
that  the  affirmative  matter  might,  in  each  of  the  above 
cases,  have  been  pleaded  per  se,  without  the  addition  of  the 
absque  hoc.  So,  whether  the  absque  hoc  were  added  or 
not,  the  pleading  might,  consistently  with  any  of  the  above 
reasons,  have  tendered  issue,  like  a  common  traverse,  in- 
stead of  concluding  with  a  verification.    These  latter  forms 


THE    PRINCIPLES    OF    PLEADING.  137 

were  dictated  by  other  principles.  The  direct  denial  under 
the  absque  hoc,  was  rendered  necessary  by  this  considera- 
tion—  that  the  affirmative  matter,  taken  alone,  would  be 
only  an  indirect  (or,  as  it  is  called  in  pleading,  argumen- 
tative) denial  of  the  precedent  statement ;  and  by  a  rule 
which  will  be  considered  in  its  proper  place  hereafter,  all 
argumentative  pleading  is  prohibited.  In  order,  therefore, 
to  avoid  this  fault  of  argumentativeness,  the  course  adopted 
was,  to  follow  up  the  explanatory  matter  of  the  induce- 
ment, with  a  direct  denial.*  Thus,  to  allege,  as  in  the  first 
example,  that  E.  B.  was  seised  for  life  would  be  to  deny 
by  implication,  but  by  implication  only,  that  the  reversion 
belonged  to  him  in  fee ;  and  therefore,  to  avoid  argumen- 
tativeness, a  direct  denial  that  the  reversion  belonged  to 
him  in  fee,  is  added,  under  the  formula  of  absque  hoc. 
"With  respect  to  the  verification,  this  conclusion  was  adopted 
in  a  special  traverse,  in  a  view  to  another  rule,  of  which 
there  will  also  be  occasion  to  speak  hereafter  —  viz.  that 
•wherever  new  matter  is  introduced  in  a  pleading,  it  is 
improper  to  tender  issue,  and  the  conclusion  must  conse- 
quently be  with  a  verification.  The  inducement  setting 
forth  new  matter,  makes  a  verification  necessary,  in  eon« 
formity  with  that  rule. 

'  The  special  traverse  having,  with  these  views,  and  in 
this  manner,  been  introduced  into  the  system  of  pleading, 
grew  so  much  into  fashion,  as  to  be  frequently  adopted 
even  in  cases  to  which  the  original  reasons  of  the  form, 
were  inapplicable  —  that  is,  to  cases  where  the  intended 
denial  was,  in  its  nature,  simple  and  absolute,  and  con- 
nected with  no  new  matter.  This  will  be  illustrated  by 
the  last  of  the  preceding  examples.  In  this,  the  defendant 
having  pleaded  a  right  of  way,  the  object  of  the  replication 
is,  merely  to  deny  that  the  right  of  way  existed  •  and  there 

*  3  Reeves'  Hist.  432.  Bac.  Ab.  Pleas,  &c.  (H.)  Courtney  v.  Phelps, 
1  Sid.  301 .     Herring  v.  Blaoklow,  Cro.  Eliz.  30.     10  Hen.  6,  7.  pi.  21. 
12* 


138  THE    PRINCIPLES    OF    PLEADING. 

is  no  reason  why  this  should  not  be  done  in  the  simple 
form  of  a  common  traverse — viz.  'that  the  said  W.  F., 
and  all  those  whose  estate,  &c.,  have  not  had  and  used, 
&c.  a  certain  way,  &c.  in  manner  and  form  as  alleged;' 
concluding  to  the  country.  But  the  fashion  of  traversing 
specially,  led  the  ancient  pleaders,  in  such  a  case  as  this 
also,  to  use  the  inducement,  the  absque  hoc,  and  the  veri- 
fication ;  and  because  the  nature  of  the  case  afforded  no 
allegation  of  new  matter,  as  introductory  to  the  denial,  — 
in  lieu  of  this,  a  kind  of  inducement  was  adopted,  contain- 
ing, in  fact,  no  new  matter,  but  a  mere  repetition  of  the 
original  complaint  —  viz.  '  that  the  defendant,  of  his  own 
ivrong,  broke  and  entered  the  close,  &c.  Without  this, 
that,  &c.'* 

'  Having  now  explained  the  form,  the  effect,  and  the  use 
and  object,  of  a  special  traverse,  it  remains  to  show  in  what 
cases  this  method  of  pleading  is  or  ought  to  be  applied  at 
the  present  day.  First,  it  is  to  be  observed,  that  this  form 
was  at  no  period  applicable  to  every  case  of  denial,  at  the 
pleasure  of  the  pleader.  There  are  many  cases  of  denial, 
to  which  the  plan  of  special  traverse  has  never  been  applied  ; 
and  which  have  always  been  and  still  are  the  subjects  of 
traverse  in  the  common  form,  exclusively.!  These  it  is 
not  easy  to  enumerate  or  define ;  they  are  determined  by 
the  course  of  precedent,  and,  in  that  way,  become  known  to 
the  practitioner.  On  the  other  hand,  in  many  cases  where 
the  special  traverse  used  anciently  to  occur,  it  is  now  no 
longer  practised.  This  relates  principally  to  that  species 
of  it,  which  is  illustrated  by  the  last  example.  Even  when 
the  formula  was  most  in  repute,  the  use  of  this  species, 

*  Upon  the  same  principle,  where  the  traverse  was  taken  in  the 
rejoinder,  it  had  often  an  inducement  simply  maintaining'  the  matter  of 
the  plea,  as  in  Stennell  v.  Hogg,  1  Saund.  223.  Mayor  of  Oxford  v. 
Richardson,  4  T.  It.  437.    9  Went.  211.  308. 

t  Home  v.  Lewin,  lLd.  Ray.  641. 


THE    PRINCIPLES    OF    PLEADING.  139 

does  not  appear  to  have  been  regarded  as  matter  of  neces- 
sity;  and  in  cases  which  admit  or  require  no  allegation  of 
new  matter,  we  find  the  special  and  the  common  traverse 
to  have  been  indifferently  used  by  the  pleaders  of  those 
days.*  But,  in  modern  times,  the  special  traverse,  with- 
out an  inducement  of  new  matter,  has  been  considered,  not 
only  as  unnecessary,  but  as  frequently  improper.  As  the 
taste  in  pleading  gradually  simplified  and  improved,  the 
prolix  and  dilatory  effect  of  a  special  traverse,  brought  it 
into  disfavor  with  the  courts ;  and  they  began  not  only  to 
enforce  the  doctrine  that  the  common  form  might  allowably 
be  substituted  in  cases  where  there  was  no  inducement  of 
new  matter,  but  often  intimated  their  preference  of  that 
form  to  the  other,  f  Afterwards  they  appear  to  have  gone 
further,  and  to  have  established  in  favor  of  the  common 
plan  of  traverse,  in  cases  where  there  is  no  allegation  of 
new  matter,  the  following  rule  of  distinction :  that  where 
the  whole  substance  of  the  last  pleading  is  de'nied,  the  con- 
clusion must  be  to  the  country,  (or,  in  other  words,  the 
traverse  must  be  in  the  common  form ;)  but  where  one  of 
several  facts  only,  is  the  subject  of  denial,  the  conclusion 
may  be  either  to  the  country,  or  with  a  verification,  (that 
is,  the  traverse  may  be  either  common  or  special,)  at  the 
option  of  the  pleader.  %  Thus,  in  the  last  example,  the 
special  traverse  would  apparently  now  be  no  longer  allow- 
able ;  because  the  replication,  denying  the  right  of  way, 
denies  the  whole  substance  of  the  plea.  It  is  not  easy  to 
trace  either  the  original  authority,  or  even  a  very  satisfac- 
tory reason,  for  this  distinction.  It  does  not  appear  to 
coincide  with  the  practice  at  a  former  period,  which  cer- 
tainly allowed  special  traverses,  though  without  an  induce- 

*  Rast.  Ent.  622 ;  and  see  Home  v.  Lewin,  1  Lord  Ray.  641. 
t  Robinson  v.  Rayley,  1  Burr.  320. 

%   See  1  Saund.  103  a.  b.  n.  (3.)    Bac.  Ab.  Pleas,  &c.  p.  381.  in  notis. 
Smith  v.  Dovers,  2  Doug.  430. 


140  THE    PRINCIPLES    OF    PLEADING. 

ment  of  new  matter,  in  many  cases  where  the  whole  sub- 
stance of  the  pleading  was  denied ;  and  its  true  origin  is 
perhaps  to  be  referred  very  much  to  the  inclination  of  the 
courts  to  discourage  this  formula.  From  the  time  that  the 
special  traverse  thus  fell  into  disrepute,  it  has  been  much 
neglected,  even  in  cases  where  legally  allowable ;  and  it 
now  rarely  occurs  in  any  instance  where  there  is  no  induce- 
ment of  new  matter,  although  the  denial  relate  to  one  out 
of  several  facts  only.  This  change  of  practice,  however, 
is  very  recent,  having  been  effected  within  the  memory  of 
many  living  practitioners.*  "With  respect  to  the  other  kind 
of  special  traverse,  viz.  that  which  is  attended  with  an 
inducement  of  new  matter,  as  illustrated  in  the  two  first 
examples,  the  case  is  very  different.  This  was  originally 
devised,  as  has  been  shown,  for  certain  reasons  of  conve- 
nience or  necessity ;  and  those  reasons  still  occasionally 
operate  the  same  way.  However,  in  the  general  decline 
of  the  method  of  special  traverse,  there  is  felt  in  practice  a 
great  disinclination  to  adopt  in  any  case  whatever,  without 
a  clear  reason  for  doing  so,  this  discredited  form  ;  and  this 
more  particularly,  in  a  view  to  the  disadvantages  with 
which  it  is  attended.  These  disadvantages  consist  not  only 
in  prolixity  and  delay,  but  in  the  additional  inconvenience 
that  the  inducement  tends  to  open  the  real  nature  of  the 
party's  case,  by  giving  notice  to  his  adversary,  of  the  pre- 
cise grounds  on  which  the  denial  proceeds ;  and  thus  facil- 
itates to  the  latter,  the  preparation  of  his  proofs,  or  other- 
wise guides  him  in  his  further  proceedings.  For  these 
reasons,  the  special  traverse  is  perhaps  daily  becoming 
more  rare  ;  and  even  though  the  case  be  such  as  would 
admit  of  an  inducement  of  new  matter  explanatory  of  the 
denial,  the  usual  course  is  to  omit  any  such  inducement, 
and  to  make  the  denial  in  an  absolute  form,  with  a  tender 
of  Lasue;  —  thus  substituting  the  common  for  the  special 

*  See  1  Chilty,  01)3.,  1st  edit.,  and  1  Saund.  103  a.  n.  (3.) 


THE    PRINCIPLES    OF    PLEADING.  141 

formula.  The  latter,  however,  appears  to  be  still  always 
allowable,  when  the  case  is  such  as  admits  of  an  induce- 
ment of  new  matter ;  except  in  certain  instances  before 
noticed,  to  which,  by  the  course  of  precedent,  the  common 
form  of  traverse  has  been  always  exclusively  applied. 
And  where  allowable,  it  should  still  be  occasionally  adopted, 
in  a  view  to  the  various  grounds  of  necessity  or  conveni- 
ence by  which  it  was  originally  suggested.  Accordingly, 
it  is  apprehended  that  in  the  two  first  examples,  a  special 
traverse  would  be  as  proper  at  the  present  day,  as  it  was 
at  the  period  when  tbe  precedents  first  occurred. 

'To  complete  our  view  of  the  nature  of  a  special  tra- 
verse, it  will  be  necessary  now  to  advert  to  certain  princi- 
ples laid  down  in  the  books  relative  to  this  form. 

'  First,  it  is  a  rule,  that  the  inducement  should  be  such, 
as  in  itself  amounts  to  a  sufficient  ansiver  in  substance  to 
the  last  pleading*  For  (as  has  been  shown)  it  is  the  use 
and  object  of  the  inducement  to  give  an  explained  or  qual- 
ified denial ;  that  is,  to  state  such  circumstances  as  tend  to 
show  that  the  last  pleading  is  not  true ;  the  absque  hoc 
being  added,  merely  to  put  that  denial  in  a  positive  form, 
which  had  previously  been  made  in  an  indirect  one.  Now, 
an  indirect  denial  amounts  in  substance,  to  an  answer ;  and 
it  follows,  therefore,  that  an  inducement,  if  properly  framed, 
must  always  in  itself  contain,  Avithout  the  aid  of  the  absque 
hoc,  an  answer,  in  substance,  to  the  last  pleading.  Thus, 
in  the  first  example,  the  allegation  that  E.  B.  was  seised 
for  life,  and  that  the  estate  is  since  determined,  is  in  itself, 
in  substance,  a  sufficient  answer,  as  denying  by  implication 
that  the  fee  descended  from  E.  B.  on  the  plaintiff".  That 
sort  of  special  traverse  containing  no  new  matter  in  the 
inducement,  as  in  the  last  example,  is  no  exception  to  this 
rule.    Thus,  to  say,  as  in  that  example,  that  the  defendant, 

*  Bac.  Ab.  (H.  1.)  Cora.  Dig-.  Pleader  (G.  20.)  Anon.  3  Salk.  353. 
Dike  v.  Ricks,  Cro.  Car.  336. 


142  THE    PRINCIPLES    OF    PLEADING. 

of  his  own  urong  broke  the  close,  &c.  is  of  itself  an  answer ; 
for  it  indirectly  denies  the  right  of  way. 

'  It  follows  from  the  same  consideration,  as  to  the  object 
and  use  of  a  special  traverse,  that  the  answer  given  by  the 
inducement,  can  properly  be  of  no  other  nature  than  that 
of  an  indirect  denial.  Accordingly,  we  find  it  decided,  in 
the  first  place,  that  it  must  not  consist  of  a  direct  denial. 
Thus,  the  plaintiff,  being  bound  by  recognizance  to  pay 
J.  Bush  £300  in  six  years,  by  £50  per  annum,  at  a  certain 
place,  alleged  that  he  was  ready  every  day,  at  that  place, 
to  have  paid  to  Bush,  the  said  £50,  but  that  Bush  was  not 
there  to  receive  it.  To  this  the  defendant  pleaded,  that 
J.  Bush  was  ready  at  the  place  to  receive  the  £50  absque 
hoc,  that  the  plaintiff  was  there  ready  to  have  paid  it.  The 
plaintiff  demurred,  on  the  ground  that  the  inducement 
alleging  Bush  to  have  been  at  the  place  ready  to,receive, 
contained  a  direct  denial  of  the  plaintiff's  precedent  alle- 
gation that  Bush  was  not  there,  and  should  therefore  have 
concluded  to  the  country,  without  the  absque  hoc ;  and 
judgment  was  given  accordingly  for  the  plaintiff.*  Again, 
as  the  answer  given  by  the  inducement,  must  not  be  a 
direct  denial,  so  it  must  not  be  in  the  nature  of  a  confession 
and  avoidance,  f  Thus,  if  the  defendant  makes  title  as 
assignee  of  a  term  of  years  of  A.,  and  the  plaintiff,  in 
answer  to  this,  claims  under  a  prior  assignment  to  himself 
from  A.  of  the  same  term,  this  is  a  confession  and  avoid- 
ance ;  for  it  admits  the  assignment  to  the  defendant,  but 
avoids  its  effect,  by  showing  the  prior  assignment.  There- 
fore, if  the  plaintiff  pleads  such  assignment  to  himself,  by 
way  of  inducement,  adding,  under  an  absque  hoc,  a  denial 
thai  A.  assigned  to  the  defendant,  this  special  traverse  is 

*  Hughes  v.  Phillips,  Yelv.  38.    And  see  3G  Hen.  6. 15. 
t  Com.  Dig.  Pleader  (G.3.)   Lambert  v.  Cook,  Lord  Ray. 238.   Ilelier 
v.  Whytier,  Cro.  El.  050. 


THE    PRINCIPLES    OF    PLEADING.  143 

bad.*     The  plaintiff*  should  have  pleaded  the  assignment  to 
himself,  as  in  confession  and  avoidance,  without  the  traverse.' 

From  all  that  is  here  said  it  is  manifest  that  this  form 
of  pleading  is  awkward  and  of  doubtful  and  difficult  appli- 
cation, and  the  Student  will  not  be  surprised  that  it  has 
long  been  regarded  as  a  stumbling-block  in  the  way  of  the 
profession.  Any  suggestion  of  means  for  removing  it 
ought  therefore  to  be  favorably  received.  Such  means  I 
proceed  to  suggest. 

If  the  plea  given  above  in  Stephen's  first  example  be 
carefully  examined,  it  will  be  found,  that,  if  the  absque 
lioc  be  taken  away,  there  will  remain  a  plea  of  confession 
and  avoidance  in  form,  good  in  substance,  but  liable  to 
a  special  demurrer  for  want  of  color.  If  the  allegation  of 
the  plea  be  true  then  the  main  fact  in  the  plaintiff's  case 
(his  ancestor's  seisin  in  fee)  is  false,  and  he  never  had 
even  a  colorable  cause  of  action. 

The  same  is  equally  true  of  the  other  example,  for  if 
the  law  be  as  the  defendant  means  to  contend,  then  it  is 
not  true,  as  the  plaintiff  has  alleged,  that  the  bishop  con- 
firmed to  him  a  demise  for  fifty  years.  There  would  be 
therefore  no  original  ground  of  action,  and  the  absque  hoc 
being  taken  away  and  the  verification  remaining,  we 
should  have  a  plea  of  denial  in  the  form  of  confession  and 
avoidance.  Both  pleas  therefore  are  bad  in  form,  though 
absolutely  good  in  substance. 

Now  in  both  cases  there  is  good  reason  why  these  pleas 
should  not  be  condemned  for  want  of  color.  If,  in  the  first 
case,  the  defendant  were  required  flatly  to  deny  the  title  of 
his  lessor,  and  put  him  on  the  proof  of  it,  he  might  truly 
say  that  he  was  estopped  to  do  so.  In  the  second  he  might 
point  to  the  importance  of  having  the  legal  sufficiency  of 
the  matter  of  the  plea  submitted  to  the  court  and  decided 
on  general  demurrer.   In  both  cases  they  would  have  given 

*  Com.  Dig.  Pleader  (G.  3.)     Helier  v.  Whytier,  Cro.  El.  650. 


144  THE    PRINCIPLES    OF    PLEADING. 

color,  if  it  had  been  possible  to  do  so.  Are  not  these 
then  as  strong  cases  as  any  that  can  be  imagined,  for  a 
refusal  by  the  court  to  decide  the  special  demurrer,  and  for 
substituting,*  for  such  decision,  either  a  rule  on  the  defen- 
dant to  traverse,  or  a  rule  on  the  plaintiff  to  demur  gen- 
erally or  reply  to  the  plea  ? 

It  is  curious  to  observe  that  both  the  awkward  forms  of 
color  and  special  traverse  take  their  rise  in  the  same 
technical  difficulty.  The  object  is  to  plead  affirmatively 
some  fact,  which,  if  true,  falsifies  what  is  alleged  on  the 
other  side,  if  the  law  be  as  the  party  supposes,  and  on  this 
question  of  law  the  judgment  of  the  court  is  wished.  But 
the  attempt  is  baffled  by  a  special  demurrer,  on  the  ground 
that  the  plea  wants  color,  or  amounts  to  the  general  issue, 
or  is  argumentative  —  all  of  which  are  but  different  names 
for  the  same  objection.  To  avoid  this  special  demurrer, 
color  was  invented,  and,  whenever  it  was  practicable,  color 
was  given.  In  other  cases,  where  no  human  ingenuity 
could  suggest  any  color,  resort  was  had  to  the  absque  hoc. 
My  wish  is  to  convince  those  who  have  power  over  the 
subject,  of  the  wisdom  of  dispensing  with  both,  in  the  way 
in  which  the  courts  in  England  have  got  rid  of  the  first. 

In  Stephen's  first  example,  the  defendant  pleads  that  his 
lessor  '  was  seised  only  for  life.'  This  denies  the  plaintiff's 
right  of  action,  and  is  argumentative,  or  wants  color.  How 
is  the  defect  amended  ?  He  is  required  to  say  '  that  he 
was  seized  only  for  life,  and  not  in  fee.'  This  is  the 
absque  hoc  rendered  into  popular  English,  and  this  cures 
the  defect,  Is  it  not  unworthy  of  a  science  so  simple,  so 
logical,  so  conducive  to  the  ends  of  Justice,  as  I  have 
shown  the  science  of  pleading  to  be,  to  be  turned  aside 
from  its  grand  purpose  by  a  straw  like  this?  Would  not 
the  courts  be  right  to  say  to  the  plaintiff,  'you  shall  not 
stand  on  this  technicality.    True  the  plea  wants  color,  and 

*  The  necessity  for  this  rule  might  be  evaded  by  filing  a  common 
traverse  along  with  the  special  plea. 


THE    PRINCIPLES    OP    PLEADING.  145 

amounts  to  the  general  issue.  Reply  to  it  then.  Or  if 
you  will,  deny  its  sufficiency  in  substance,  deny  that  it 
amounts  to  the  general  issue,  and  demur  to  it  generally. 
But  tell  us  no  more  that  a  plea  is  bad,  because  it  is  too 
good.  If  instead  of  calling  for  proof  from  you,  the 
defendant  takes  on  himself  to  prove  that  which  falsifies 
your  allegation,  it  is  all  the  better  for  you,  and  not  a  thing 
for  you  to  complain  of.  We  indeed  desire  conciseness, 
and  an  adherence  to  simple  forms.  But  how  shall  we 
obtain  these  by  requiring  the  defendant  to  add  to  what  he 
has  said  an  absque  hoc  which  is  clearly  implied,  or  a  set 
form  of  color  which  is  not  to  be  proved  and  forms  no  part 
of  the  issue  ?  The  plea  is  contrived  to  save  the  expense  of 
a  trial,  and  to  bring  a  question  of  law  distinctly  and  at  once 
before  the  court.  Let  it  stand,  and  either  reply  to  it  or 
demur  generally.' 

If  our  courts,  cramped  as  they  are  by  meddling  legisla- 
tion, doubt  their  power  to  hold  this  language,  an  enactment 
of  three  lines  will  give  it.* 


*  Perhaps  the  true  account  of  this  curious  refinement  is  this. 

The  judgment  is  the  conclusion  of  law  from  the  facts  which  stand 
established  on  the  record.  They  can  only  be  established  by  confession 
or  by  verdict.  Now  suppose  this  case.  A.  sues  B.  on  a  wager ;  A. 
having  bet  that  a  certain  horse  was  white.  The  declaration  sets  forth 
the  bet  and  avers  that  the  horse  was  white.  B.  pleads  that  he  was 
black,  and  A.  takes  issue.  The  jury  find  for  the  plaintiff',  '  that  the  horse 
was  not  black.'  This  is  the  only  form  of  finding,  and  the  verdict  can 
say  nothing  more  than  this  about  the  color.  If  it  was  white,  the  jury,  if 
they  say  so,  do  not  say  it  on  oath.  The  important  and  indispensable 
fact  of  the  case  then  is  not  established  by  the  oath  of  twelve  men.  Is  it 
admitted  by  the  defendant?  Just  the  reverse.  The  last  heard  from  him 
was  an  averment  that  he  was  black.  The  data  for  judgment  therefore 
are  wanting,  and  a  repleader  will  be  necessary. 

Now  if  the  Jury  had  found  for  the  defendant,  he  might  have  had  judg- 
ment, for  such  finding  falsifies  the  declaration,  though  the  opposite  does 
not  support  it.  To  permit  such  a  plea  then  is  to  permit  the  defendant  to 
play  at  a  game  at  which  he  cannot  lose  and  may  win.  This  would  be 
unfair  and  is  not  allowed. 

So  take  the  first  case  put  by  Stephen,  take  away  the  absque  hoc,  and 
13 


146  THE    PRINCIPLES    OF    PLEADING. 

3.  We  come  now  to  the  nature  and  properties  of  plead- 
ing in  general  without  reference  to  their  quality  as  being 
by  way  of  Traverse  or  of  Confession  and  avoidance. 

First,  it  is  a  rule  that  every  pleading  must  be  an 
answer  to  the  ivhole  of  what  is  adversely  alleged. 

Two  examples  will  explain  this.  Suppose  in  the  case 
above  of  Doe  vs.  Roe,  that  Roe  has  nothing  to  say  but 
that  he  has  paid  five  of  the  ten  pounds  in  his  bill  obliga- 
tory mentioned.     Suppose  him  then  to  plead  thus. 

'  The  said  Richard  Roe  says  that  on  the  day  of 

he  paid  to  the  said  John  Doe  five  pounds  part  of 

the  debt  in  the  declaration  mentioned,  and  this  he  is  ready 

to  verify,  wherefore  he  prays  judgment  if  the  said  John 

his  action  aforesaid  ought  to  have  and  maintain.' 

Now  this  prayer  of  Judgment  is  clearly  a  non  sequitur. 
The  plaintiff  is  entitled  to  the  other  five  pounds,  and  his 
proper  action  to  recover  it  is  on  the  bond  as  he  has 
brought  it.  This  plea  therefore  will  be  adjudged  bad  on 
demurrer.     Suppose  Roe  then  to  plead  thus. 

'The  said  Richard  says  that  on  the  clay  of  he 
paid  to  the  said  John  the  sum  of  five  pounds  part  of  the 
debt  in  the  declaration  mentioned  and  this  he  is  ready  to 
verify,  wherefore  he  prays  judgment  if  the  said  John  his 
action  aforesaid  ought  to  have  and  maintain  as  to  the  said 
sum  of  five  pounds  part  and  parcel  of  the  said  debt.' 

Here  there  is  no  non  sequitur.  The  judgment  prayed 
is  the  true  conclusion  from  the  fact  plead,  and  the  plea  is 
good.  But  by  this  and  the  next  rule  it  is  the  same  as  if 
he  had  prefixed  these  words  :  '  the  said  Richard  says  that 
as  to  the  sum  of  five  pounds  part  and  pai'cel  of  the  debt  in 

let  the  jury  be  sworn  on  the  inducement,  plead  as  in  avoidance  and  tra- 
versed by  the  plaintiff.  They  find  the  issue  for  him  ;  hut  he  cannot  have 
judgment,  for  tin.'  main  feci  in  his  case  is  neither  found  nor  confessed. 

This  difficulty  is  one  which  might  call  for  legislation.  The  lask  of 
framing  a  statute  which  should  remove  it,  and  thus  dispense  with  Color 
and  special  traverse  both,  would  be  easy. 


THE   PRINCIPLES    OF   PLEADING.  147 

the  declaration  mentioned,  lie  cannot  gainsay  tlie  plaintiff's 
demand  therefor,  and  as  to  the  residue  thereof  he  says 
&c.  &c.' 

Had  these  words  (which  are  superfluous)  heen  inserted, 
they  would  have  amounted  to  an  express  confession  of 
Judgment  pro  tanto.  Without  them  there  is  a  tacit  confes- 
sion to  the  same  extent.  The  plaintiff's  course,  in  both 
cases,  is  to  enter  judgment  for  the  amount  confessed  and 
let  the  case  stop  there,  or  to  traverse  the  payment  of  the 
other  £5.  If,  instead  of  this,  he  demurs  or  replies,  he 
discontinues  the  whole  action,  and  is  thrown  out  of  court. « 

I  have  given  these  examples  in  preference  to  any  other, 
because  there  prevails,  in  Virginia,  a  practice,  in  these 
actions,  which  ought  to  be  corrected. 

The  practice  is  this.  The  defendant  instructs  the 
Clerk  to  enter  the  plea  of  payment,  which  he  does  by 
writing  the  contraction  '  paymt.'  in  a  column  of  his  docket. 
This,  of  course  is  no  plea,  but  by  the  mutual  indulgence  of 
practitioners  it  passes  for  one.  Such  as  it  is,  it  stands  for  an 
averment  that  the  defendant  on  a  day  certain  did  actually 
pay  the  whole  debt.  This  averment  the  plaintiff  traverses 
and  tenders  issue,  and  this  issue  the  Jury  are  sworn  to  try. 
Of  course  then  if  the  defendant,  who  bears  the  onus  pro- 
bandi,  fails  to  prove  the  payment  of  the  whole  sum,  the  plea, 
which  is  entire,  is  not  proved,  and  the  issue  must  be  found 
for  the  plaintiff.  More  than  this  they  are  not  sworn  to  try, 
and  whatever  they  may  say  more  than  this  is  not  said  on 
oath,  and  is  no  part  of  the  verdict.  At  Common  Law  and 
on  Common  Law  principles  no  notice  could  be  taken  of  it. 
It  is  true  the  Statute  makes  it  their  duty  to  say  what  is 
due  on  the  bond,  but  this  is  a  something  to  be  appended  to 
the  verdict,  which  they  are  sworn  to  give,  and  that  truly. 
Combining  therefore  the  Common  Law  and  the  Statute, 
the  verdict  should  run  thus  :  '  The  Jury  &c.  do  say,  that 
the  said  C.  D.  did  not  pay  to  the  said  A.  B.  the  said  sum 


148  THE    PRINCIPLES    OF    PLEADING. 

of  £10  in  manner  and  form  as  in  pleading  he  has  alleged 
—  and  the  Jury  do  farther  say  that  there  is  now  due  on 
the  bond  in  the  declaration  mentioned  the  sum  of  £5.' 

But  here  the  counsel  for  the  defendant  ought  to  be 
admonished  that  he  has  done  his  client  great  wrong.  £5 
had  in  truth  been  paid,  and,  had  he  so  plead,  the  evidence 
would  have  sustained  his  plea,  the  verdict  and  judgment 
would  have  been  in  his  favor,  and  he  would  have  had 
judgment  for  all  the  costs  incurred  since  the  plea  pleaded. 
As  it  is,  the  verdict  and  judgment  are  against  him  and  he 
is  made  to  pay  the  costs  incurred  in  establishing  the 
payment  he  had  actually  made. 

Now  I  am  aware  that  two  objections  will  be  urged  to 
the  regular  course  of  proceeding.  One  is  that  the  general 
plea  of  payment  postpones  the  decision,  and  so  gains  time. 
To  this  the  answer  is  that  the  defendant's  counsel  can 
always  secure  the  time  by  speaking  to  his  adversary,  and 
saying  that  if  he  will  take  a  judgment  for  what  is  actually 
due,  with  stay  of  execution,  he  will  confess  so  much, 
and  otherwise  not.  If  the  plaintiff  does  not  mean  to 
contend  for  any  thing  more,  he  will  always  be  glad  to 
accept  these  terms,  which  put  an  end  to  the  case  and  save 
costs.  On  the  other  hand  if  the  plaintiff  means  to  deny 
a  payment  which  the  defendant  is  prepared  to  prove,  then 
by  pleading  correctly  he  throws  on  the  plaintiff  the  costs' 
of  proving  this.  Few  clients  would  be  satisfied,  if  they 
were  aware  of  the  amount  of  costs  with  which  they  are 
thus  taxed  by  the  carelessness  of  an  attorney,  who  contents 
himself  witli  tbe  contraction  'payt.'  lest  he  might  do  too 
much  for  his  $5,  by  writing  thus  : 

'The  said  Richard  says  thai  as  to  the  sum  of  five  pounds, 
part  and  parcel  of  the  debt  in  the  declaration  mentioned 
the  said  John  ought  not  to  have  and  maintain  his  action 
aforesaid  thereof  against  him  because  he  says  that  before 
the  bringing  of  this  suit,  to  wit  on  the  day  of 


THE    PRINCIPLES    OF    PLEADING.  149 

he  the  said  Richard  to  the  said  John  the  said  sum  of  five 
pounds  did  well  and  truly  pay,  and  this  he  is  ready  to 
verify.  "Wherefore  he  prays  judgment  if  the  said  John 
his  action  aforesaid  as  to  the  said  sum  of  five  pounds  part 
and  parcel  of  the  debt  in  the  declaration  mentioned,  ought 
to  have  and  maintain.' 

If,  instead  of  being  a  mere  transcript  of  an  established 
form,  this  were  an  original  composition  of  the  highest 
order,  it  would  be  well  paid  for  by  $5.  Lord  Byron's 
noblest  strains  did  not  command  a  higher  price.  It  is 
double  what  Constable  offered  Walter  Scott  for  "Waverley. 
For  my  part,  I  shall  consider  the  whole  labor  of  this  work 
well  rewarded,  if  I  can  save  to  defendants  (without  putting 
a  cent  into  my  own  pocket)  all  the  costs  which  they  are 
made  to  pay  by  the  disregard  of  Attorneys  of  the  simple 
proposition  laid  down  in  this  short  passage. 

Again  it  is  a  rule,  that  every  pleading  is  taken  to  con- 
fess all  such  traversable  matters  as  it  does  not  traverse. 
Thus  the  plea  of  payment,  release,  duresse,  or  any  other 
matter  of  confession  and  avoidance  admits  the  execution 
of  the  bond.  '  The  effect  of  this  admission,'  says  Stephen, 
'  is  extremely  strong ;  for,  first,  it  concludes  the  party,  even 
though  the  jury  should  improperly  go  out  of  the  issue, 
and  find  the  contrary  of  what  is  thus  confessed  on  the 
record ;  and  in  the  next  place,  it  operates  not  only  to  pre- 
vent the  fact  from  being  afterwards  brought  in  question  in 
the  same  suit,  but  is  equally  conclusive  as  to  the  truth  of 
the  same  fact,  in  any  subsequent  action  between  the  same 
parties.' 

The  first  of  these  propositions  most  strikingly  illustrates 
the  absurdity  of  the  practice  heretofore  spoken  of,  of  non- 
suiting a  plaintiff  because  he  does  not  produce  his  bond  on 
a  plea  of  payment.  The  Jury,  as  I  have  shown,  cannot 
find  for  the  defendant  on  the  issue  actually  joined,  without 
forswearing  themselves ;  and  if  they  go  out  of  the  issue, 
13* 


150  THE   PRINCIPLES    OP   PLEADING. 

and  find  that  the  bond  is  not  the  defendant's  deed,  the 
finding  will  be  disregarded. 

The  latter  proposition  of  Stephen  gives  rise  to  what  is 
called  protestation ;  which  is  a  form,  by  which  the  party 
reserves  to  himself  the  right  to  contest,  in  any  future 
action,  any  traversable  matter  which  he  finds  it  incon- 
venient to  traverse. 

Thus  the  plea  of  accord  and  satisfaction  alleges  two 
distinct  facts ;  to  wit  that  something  was  given  in  satis- 
faction, and  also  that  it  was  taken  in  satisfaction.  A  rep- 
lication therefore  traversing  both  facts  would  be  bad  for 
duplicity :  and  as  the  plaintiff  is  tied  clown  to  one  replica- 
tion to  each  plea,  he  can  by  no  means  traverse  more  than 
one  of  them.  Now  if  in  tresspass  the  plea  be  that  $100 
was  so  given  and  taken  in  satisfaction,  a  replication  deny- 
ing the  latter  fact  admits  the  receipt  of  the  money.  The 
plaintiff  having  obtained  judgment,  the  defendant  turns 
about  and  sues  him  as  for  money  had  and  received  to  his 
use,  and  proves  by  the  record  that  the  plaintiff  had  re- 
ceived it,  and  not  in  satisfaction  of  the  first  demand.  He 
must  therefore  refund,  or  show  a  right  to  retain  it.  Hence 
if  he  means  to  traverse  that  he  took  the  money  in  satis- 
faction, he  must  introduce  by  parenthesis  the  following 
formula  :  '  The  said  C.  D.  {protesting  that  the  said  A.  B. 
did  not  deliver  to  him  the  said  sum  of  one  hundred  dollars 
as  above  in  pleading  he  has  alleged)  says  &c.  that  he  did 
not  accept  in  satisfaction  &c.  &c.'  The  above  words  in 
Italics  constitute  the  protest  of  which  we  speak. 

I  need  hardly  remind  the  reader  that  failure  to  protest 
against  the  legal  sufficiency  of  a  matter  traversed,  can  not 
prejudice  the  pleader.  This  must  be  clear  from  what  I 
have  already  said. 

The  rule  that  each  party  must,  at  every  stage,  confess 
and  avoid,  traverse,  or  demur,  admits  of  this  modification. 
He  may  wish  to  contend,  that,  because  of  some  particular 


THE    PRINCIPLES    OF    PLEADING.  151 

fact  which  he  alleges,  he  is  not  bound  to  do  either.  Forms 
are  therefore  provided  by  which  he  may  bring  that  ques- 
tion to  a  decision  without  doing  either.  Thus  if  the  de- 
fendant is  sued  in  a  court  not  having  jurisdiction  of  the 
case,  or  by  one  who  cannot  maintain  a  suit  (as  a  married 
woman)  or  is  herself  not  liable  to  be  sued  alone  (as  in  the 
same  case)  or  if  the  action  be  not  supported  by  a  sufficient 
writ,  all  these  are  plainly  reasons  why  neither  confession 
and  avoidance,  traverse  or  demurrer,  should  be  demanded 
of  the  defendant.  All  these  cases  belong  to  the  same 
category,  and  furnish  ground  for  what  are  called  '  dilatory 
pleas,'  and  less  accurately  '  pleas  in  abatement.'  Of  these 
I  shall  speak  hereafter.  Again  the  party  may  not  be 
bound  to  confess  and  avoid,  traverse  or  demur,  because  the 
matter  to  be  plead  to  is  one  that  the  adverse  party  had  no 
right  to  allege.  If  so  he  has  no  right  to  demand  an  ad- 
mission of  it,  or  to  prove  it,  as  he  might  do  if  it  were 
controverted.  Cases  of  this  sort  are  called  estoppels ;  as 
if  a  man  having  by  deed  acknowledged  the  payment  of  a 
certain  sum  of  money,  should  afterwards  demand  the  same 
as  due  and  unpaid.  Yet  it  does  not  follow  that  it  is  not 
still  due,  or  that  it  should  be  dealt  with  as  if  it  were  not. 
A  carelessness  not  without  example  in  this  country,  might 
give  rise  to  the  following  case. 

A.  contracts  to  convey  land  to  B.  at  a  future  day,  and 
B.  by  writing,  setting  forth  the  transaction,  engages  to  pay 
therefor  a  certain  sum.  A.  prepares  a  deed  of  bargain 
and  sale  in  the  usual  form  acknowledging  the  receipt  of 
the  money.  B.  wishes  to  fly  from  the  bargain.  A.  presses 
the  deed  upon  him  which  he  finally  accepts,  and  after- 
wards is  sued  for  the  purchase  money. 

Now  here  the  defendant  holds  the  sealed  admission  of 
the  plaintiff  that  the  money  has  been  paid.  But  if  he 
pleads  payment  and  offers  the  deed  in  proof  of  it,  there 
may  be  witnesses  to  prove  that  no  money  was  paid — that 


152  THE    PRINCIPLES     OF    PLEADING. 

B.  refused  to  pay,  and  after  discovering  his  advantage,  had 
boasted  of  it.  On  such  evidence  no  jury  would  hesitate 
to  find,  as  they  lawfully  might,  for  the  plaintiff. 

Instead  of  doing  this  the  defendant  says, '  that  the  plain- 
tiff ought  not  to  be  admitted  or  received  to  say  that  the 
debt  had  not  been  paid]  because  he  says  that  since  the 
execution  and  delivery  of  the  bond  or  note,  the  plaintiff 
executed  and  delivered  the  deed  which  he  sets  forth,  and 
so  '  prays  judgment  if  the  plaintiff  ought  to  be  admitted 
or  received  to  say  that  the  said  debt  ivas  unioaid? 

If  the  plaintiff  demur  to  this,  his  demurrer  is  overruled ; 
for  the  judgment  prayed  is  the  legitimate  consequence  of 
the  fact  plead.  It  decides  the  case,  but  not  the  contro- 
versy :  and  leaves  the  plaintiff  free  to  use  such  other 
means  of  redress  as  his  own  folly  and  the  craft  of  his 
adversary  have  left  him.  Not  so  if  the  plea  beginning 
and  ending  in  law  had  prayed  'judgment  that  the  plaintiff 
ought  not  to  have  and  maintain  his  action?  Such  judg- 
ment would  be  conclusive.  But  the  law  adopts  no  such 
conclusion.  And  this  is  what  is  meant  when  it  is  said 
that  he  who  would  avail  himself  of  an  estoppel  must  plead 
it  as  such.  That  is  with  the  proper  prayer  of  judgment, 
for  if,  in  this  case  the  defendant  had  plead  payment  the 
plaintiff  is  not  estopped  to  falsify  the  plea  by  other  ev- 
idence, and  if  he  pleads  the  fact,  as  it  was,  in  bar,  the 
plea,  as  I  have  just  shown,  is  bad  on  demurrer.  But  when 
he  pleads  it  by  way  of  estoppel  the  plaintiff  dares  not 
demur :  if  he  traverses,  it  is  by  non  est  factum,  which 
must  be  put  in  on  oath,  and  his  only  chance  is  to  confess 
and  avoid,  as  c.  g.  by  replying  duresse.* 

I  beg  the  reader  to  observe  the  acciu-acy  with  which 

#  I  have  known  the  very  case  here  put,  except  that  the  plaintiff  sent 
the  deed,  and  had  no  proof  to  controvert  it,  and  that  the  defendant, 
ilimiJi  aware  of  his  advantage,  declined  to  use  it,  either  by  way  of 
estoppel,  or  l>y  pleading  payment. 


THE    PRINCIPLES    OF    PLEADING.  153 

this  beautiful  system  secures  to  sealed  instruments  the 
credit  due  to  them,  as  witnesses  created  by  the  act  of  the 
parties,  who,  they  agree,  shall  not  be  contradicted,  and,  at 
the  same  time  forbears  to  act  upon  them  as  incontrovertihly 
true,  when  he  who  relies  upon  them  declines  to  put  their 
truth  in  issue. 

This,  as  I  take  it,  is  all  that  is  meant  by  the  somewhat 
rash  saying  'that  estoppels  are  odious.'  A  system  of 
jurisprudence  which  made  it  impossible  for  men  to  pre- 
serve the  memory  of  facts  by  writing,  and  to  consecrate 
the  witness  thus  created  by  agreeing  betiveen  themselves 
that  he  should  never  be  contradicted,  would  be  wholly 
inadequate  to  the  permanent  security  of  rights.  The  seal 
is  the  cabalistic  but  simple  and  certain  expression  of  this 
agreement,  and  all  that  the  law  of  estoppel  does  is  to  en- 
force it.  I  beg  pardon  for  this  digression  to  the  law  of 
Right,  to  which  branch  of  the  law  estoppels  belongs, 
though  those  who  fret  and  chafe  at  them,  charge  the  fault 
on  the  law  of  remedy.  But  when  the  law  of  right  forbids 
a  man  to  controvert  his  own  deed,  the  law  of  remedy  does 
but  furnish  him  with  forms  of  pleading  by  which,  without 
doing  this,  he  may  controvert  any  thing  which  he  may 
lawfully  deny.  It  is  to  free  the  system  of  pleading  from 
this  reproach  that  I  have  said  so  much  of  pleadings  by  way 
of  estoppel. 

A  third  case  in  which  a  party  may  be  excused  from 
pleading  by  way  of  confession  and  avoidance,  traversing 
or  demurring,  is  where  he  finds  that  his  adversary  misun- 
derstands what  he  has,  on  his  part,  alleged,  and  stops  to 
set  him  right.  Thus  in  tresspass  quare  clausum  f regit, 
the  description  of  the  plaintiff's  close  is  so  general  that 
it  may  apply  to  any  other  in  the  same  town  or  county. 
If  then  the  defendant  is  the  owner  of  such  a  one  he 
may  plead  that  the  locus  in  quo  as  described  is  his  own 
freehold.     Now  he  is  prepared  to  prove  this,  and  so  the 


154  THE    PRINCIPLES    OF    PLEADING. 

plaintiff  must  make  what  is  called  a  reassignment,  in  which 
he  distinguishes  his  own  close  from  any  other.  He  might 
have  been  thus  particular  at  first,  but  as  he  was  not  he 
supplies  the  omission  now  by  saying  in  substance,  that 
he  did  not  speak,  as  the  defendant  may  have  supposed,  of 
the  defendant's  close,  but  of  one  of  his  own,  which  he 
proceeds  to  describe  as  fronting  to  the  South  on  a  certain 
street,  and  bounded  on  the  West  by  the  lot  of  A.  on  the 
North  by  that  of  B.  and  on  the  East  by  that  of  C.  The 
case  is  thus  thrown  two  stages  back,  and  the  defendant 
pleads  de  novo.  As  I  do  not  propose  to  treat  of  the  sev- 
eral actions  I  say  nothing  of  the  cases  in  which  this  is 
proper.  For  this  I  refer  to  other  treatises,  and  to  the 
books  of  forms.  These  forms  perhaps  might  be  made 
more  concise,  simple  and  intelligible. 

The  Rule,  that,  at  each  stage  of  the  pleadings,  each 
party  must  either  confess  and  avoid,  traverse  or  demur, 
clearly  implies  that  either  will  be  sufficient. 

'  There  is  however  an  exception  to  this  in  a  case  which 
the  books  consider  as  anomalous  and  solitary.  It  is  as 
follows :  If  in  debt  on  a  bond  conditioned  to  perform  an 
award,  the  defendant  pleads  that  no  award  was  made,  and 
the  plaintiff,  in  reply,  alleges  that  an  award  was  made, 
setting  it  forth,  it  is  held  that  he  must  also  proceed  to  state 
a  breach  of  the  award;  and  that,  without  stating  such 
breach,  the  replication  is  insufficient.  This,  as  has  been 
observed,  is  an  anomaly ;  for,  as,  by  alleging  and  setting 
forth  an  award,  he  fully  traverses  the  plea,  which  denied 
the  existence  of  an  award,  the  replication  would 
according  to  the  general  rule  under  consideration,  to  be 
lientj  without  the  specification  of  any  breach.  And, 
in  accordance  with  that  rule,  it  is  expressly  laid  down' 
(by  Lord  Holt)  'that,  in  all  other  cases  'if  the  defendant 
pleads  a  special  matter,  that  admits  and  excuses  a  non- 
p<  rfbrmance,  the  plaintiff  need  only  answer  ami  falsify 


THE    PRINCIPLES    OF    PLEADING.  1").') 

the  special  matter  alleged :  for  he  that  excuses  a  non-per- 
formance supposes  it,  and  the  plaintiff  need  not  show  that 
which  the  defendant  has  supposed  and  admitted.'  ' 

So  universally  true  is  it  that  the  event  of  a  cause  is  not 
to  be  affected  by  the  truth  or  falsehood  of  any  fact  but 
that  on  which  the  party  has  chosen  to  rest  his  case ! 

RULE  II. 

On  a  General  Traverse  issue  must  be  tendered. 

An  issue  is  always  made,  when  the  fact,  on  the  truth  or 
falsehood  of  which  the  parties  agree  to  rest  the  cause  is 
affirmed  on  one  side  and  denied  on  the  other.  It  remains 
to  join  issue,  which  is  done  by  a  tender  thereof  on  one  side 
and  acceptance  on  the  other.  Thus  these  words,  '  Of  this 
the  defendant  puts  himself  upon  the  country '  and  '  The 
Plaintiff  does  the  like,'  join  the  issue,  and  bind  the  parties 
to  abide  the  verdict  of  a  jury.  When  there  were  other 
modes  of  trial  this  form  was  necessary.  At  this  day 
it  is  superfluous,  and  there  is  now  no  reason  why  issue 
may  not  be  considered  as  joined  as  soon  as  tendered, 
unless  the  party  chooses  to  demur.  The  similiter  is  cleaidy 
superfluous.  In  England  it  is  entered  by  the  Clerk, 
whence  it  appears  that  it  is  not  held  necessary  that  the 
party  join  issue.     Why  then  retain  the  form  ? 

Sometimes  the  negation  comes  first,  and  is  followed  by 
an  affirmation  of  the  thing  denied.  This  too  makes  an 
issue,  though  there  is  an  unseemly  awkwardness  in  the 
verification  of  a  negative. 

Thus  the  plea  of  the  act  of  limitations  is  negative  in 
form.  '  The  defendant  says  he  did  not  assume  within 
five  years  next  before  &c.  and  this  he  is  ready  to  verify.' 
The  plaintiff  replies  '  that  he  did  assume  within  five  years, 
and  this  he  prays  may  be  enquired  of  by  the  country.' 


156  THE    PRINCIPLES    OF   PLEADING. 

Why  does  not  the  plea,  which  is  negative,  tender  issue  ? 
For  two  reasons.  1.  The  thing  denied  is  not  that  which 
had  been  affirmed.  The  Plaintiff  alleges  a  promise  at 
some  time  or  other.  The  defendant  confessing  this,  says 
that  none  was  made  within  five  years.  2.  The  plea 
admits  of  many  answers.  It  may  be  traversed,  or  confessed 
and  avoided  by  replying  infancy,  coverture,  or  any  other 
saving  of  the  Statute.  But  as  we  shall  see  that  issue 
when  properly  tendered  must  be  joined,  it  will  follow  that 
issue  cannot  be  property  tendered,  where  the  other  party 
has  a  right  to  confess  and  avoid.  As  there  seems  to  be 
some  difficulty  at  times  in  knowing  when  to  verify  and 
when  to  tender  issue,  I  beg  leave  to  suggest  that  the  best 
criterion  will  be  found  in  the  answer  to  this  question :  '  Does 
the  matter  pleaded  admit  of  more  than  one  answer  ? '  If 
so,  he  who  pleads  it  should  verify.  Of  this  there  can  be 
no  doubt.  I  am  not  so  clear  that  the  converse  is  equally 
true,  but  I  incline  to  believe  that  it  is  generally  so. 

Let  us  apply  this  criterion  to  a  disputed  case  from  Saun- 
ders stated  by  Stephen. 

'  In  debt  on  bond  conditioned  to  render  a  full  account  to 
the  plaintiff  of  all  such  sums  of  money  and  goods  as  were 
belonging  to  W.  N.  at  the  time  of  his  death,  the  defendant 
pleaded  that  no  goods  or  sums  of  money  came  to  his  hands. 
The  plaintiff  replied  that  a  silver  bowl,  which  belonged  to 
the  said  W.  N.  at  the  time  of  his  death,  came  to  the  hands 
of  the  defendant,  viz.  on  such  a  day  and  year,  '  and  this  he 
is  ready  to  verify'  &c.  On  demurrer  it  was  contended 
that  the  replication  ought  to  have  concluded  to  the  country; 
there  being  a  complete  negative  and  affirmative  ;  but  the 
court  thought  it  well  concluded,  as  new  matter  was  intro- 
duced.' Saunders  who  reports  this  case  pronounces  the 
decision  clearly  bad,  and  so  does  Serjeant  Williams  in  his 
notes;  and  in  this  opinion  I  concur  for  the  following  reasons. 

It  was  not  for  the  plaintiff  to  know  what  had  been 


THE    PRINCIPLES    OF    PLEADING.  15t7 

received,  and  he  therefore  might  have  replied  that  goods 
and  money  had  been  received,  tendering  issue  as  he  must 
do.  Yet  on  this  issue  he  might  have  proved  the  bowl,  or 
any  thing  else.  The  bowl  then  would  have  been  embraced 
in  the  general  allegation,  as  much  as  if  specified.  It  was 
as  much  in  the  issue  as  if  specified,  yet  it  was  not  new 
matter,  being  so  plead.  Can  it  be  that  the  superfluous 
specification  will  make  it  new  matter  ? 

Now  let  us  apply  my  criterion.  Did  the  replication 
admit  of  more  than  one  rejoinder  ?  Certainly  not,  for  any 
imaginable  answer  by  way  of  confession  and  avoidance 
would  have  been  bad  for  departure.  Cui  bono  then  the 
verification  ?  And  why  a  departure  ?  Because  it  would 
confess  what  had  been  at  first  denied.  This  is  clearly  so. 
It  had  been  denied  then  by  the  defendant,  and  affirmed  by 
the  plaintiff.  Is  not  this  an  issue  ?  What  was  necessary 
then  but  to  tender  it  ? 

If  this  argument,  drawn  from  no  technicalities,  but  from 
the  reason  of  the  thing,  and  a  regard  to  the  essential  rights 
of  the  parties,  strengthens  the  opinion  of  Saunders,  I  hope 
it  will,  in  turn,  derive  countenance  from  that  opinion.  On 
all  such  points,  Saunders  is,  I  conceive,  the  very  highest 
authority  in  the  Law. 

SECTION  II. 

OF  RULES   WHICH   TEND   TO    SECURE    THE    MATERIALITY 
OF  THE  ISSUE. 

On  this  subject  one  rule  covers  the  whole  ground.     It 

is  that  EVERT  PLEADING  MUST  AVER  OR  DENT  SOME 
MATTER   PERTINENT    AND    MATERIAL. 

Thus  a  plea  by  an  executrix  who  is  sued  on  her  testator's 

bond,  that  it  is  not  her  deed,  is  bad,  as  denying  what  is 

not  alleged.     In  Trover  —  that  the  defendant  did  not  find 

the   goods,  is   bad  as  denying  what  is  immaterial.     In 

14 


158  THE    PRINCIPLES    OF    PLEADING. 

assumpsit — that  the  defendant  was  a  married  man  when 
he  made  the  promise  is  bad  as  alleging  what  is  immateri- 
al ;  while  a  like  plea  by  a  woman,  viz.  that  she  was  at  the 
time  a  feme  covert  is  material  and  good,  at  least  in 
substance.     Hence  it  is 

1.  That  a  traverse  must  not  be  taken  on  an  immaterial 
point. 

The  second  instance  given  above  illustrates  this.  So  too 
if  a  matter  which  may  become  material  is  prematurely 
alleged  it  must  not  be  traversed,  but  if  the  party  means  to 
rely  on  the  point,  he  must  plead  the  reverse  affirmatively. 
Thus  in  debt  on  bond,  the  plaintiff  having  unnecessarily 
stated  that  the  defendant  was  of  full  age,  the  issue  of 
nonage  is  not  to  be  made  up  by  traversing  that,  but  by 
pleading  that  the  defendant  was  a  minor.  The  onus 
probandi  is  upon  him,  and  he  is  not  allowed  to  evade  it  by 
so  pleading  as  to  call  for  proof  from  the  plaintiff. 

So  matter  of  aggravation  is  not  to  be  traversed ;  such 
as  the  words  in  an  action  of  assault  and  battery  where  the 
plaintiff  says  that  by  reason  of  the  beating  '  his  life  was 
greatly  despaired  of  So  too  matter  of  inducement  of  the 
same  character.  An  example  of  this  is  found  in  the 
complimentary  language  in  which,  in  slander,  the  lawyer 
speaks  of  his  client's  'good  name,  fame  and  reputation." 
This  is  not  traversable.  (  But  the  case  is  different  where 
the  matter  of  inducement  forms  the  foundation  of  the 
plaintiff's  right.  In  such  case  it  may  be  traversed. 
Strange  as  it  may  seem,  I  look  on  the  plea  of  non  est 
factum  as  an  instance  of  this :  for  the  gist  of  the  action  is 
said  to  be  the  breach,  and  the  execution  of  the  bond  is 
therefore  not  averred  but  recited.  Just  so  in  detinue. 
The  title  of  the  plaintiff  is  recited,  and  the  gist  of  the 
action  is  the  detainer ;  and  if  the  plea  of  non  detinet  did 
not  cover  the  whole  ground,  a  traverse  of  the  plaintiff's 
title  would  be  allowable.  Now  in  debt  on  bond  the 
plea  of  nil  debet  (which  corresponds  with  non  detinet)  not 


THE    PRINCIPLES    OF    PLEADING.  159 

being  admissible,  the  defendant  is  allowed  to  traverse  in 
the  only  proper  form,  the  plaintiff's  title  to  the  money, 
which  he  says  the  defendant  detains.  I  have  made  these 
remarks  not  only  to  illustrate  the  point  in  hand,  but  to 
correct,  what  I  deem  a  strange  and  common  misapprehen- 
sion of  the  nature  of  the  action  of  debt.  This  is  brought 
not  to  recover,  from  the  defendayxts  estate,  compensation 
for  a  wrong  done  the  plaintiff,  but  to  recover  from  the 
defendants  possession,  that  which  already  belongs  to 
the  plaintiff.  This  truth  is  obscured  by  the  fact  that 
although  he  recovers  a  specific  sum,  he  does  not  recover 
any  specific,  coins.  But  the  reason  of  this  is  obvious,  and, 
in  many  cases,  the  plaintiff  may,  if  he  chooses,  bring 
detinue,  and  recover  the  very  coins,  though  he  may,  by 
suing  in  debt,  waive  his  right  to  do  this. 

But  where  there  are  several  material  allegations,  all  of 
which  together  make  up  the  plaintiff's  case,  or  the  defen- 
dants defence,  any  one  of  these  may  be  traversed  at  the 
option  of  the  other  party. 

The  case  of  an  assigned  bond  illustrates  this.  Though 
the  bond  be  duly  executed  and  assigned  to  A.,  and  by  him 
to  B.,  yet  if  B.  did  not  assign  to  C,  C.  has  no  right  of 
action.  So  if  B.  did  assign  to  C,  he  will  have  no  right  of 
action  unless  A.  had  first  assigned  to  B.  So  if  both  assign- 
ments were  duly  made,  yet  non  est  factum  will  defeat  the 
action.  The  defendant  therefore  may  deny  either  of  these 
three  facts.  By  this  he  admits  the  other  two,  and  only 
calls  for  proof  of  the  third.  But,  under  our  Statute,  he 
may  traverse  each  in  a  separate  plea,  and  so  require  the 
plaintiff  to  prove  his  whole  case. 

2.    A  Traverse  must  not  be  too  broad  or  large. 

As  immaterial  facts  cannot  be  traversed,  so  they  must 
not  be  mixed  up  in  a  traverse  of  material  facts,  so  as 
to  form  part  of  the  issue.  As  the  whole  issue  must  be 
proved  it  is  not  allowable  to  embrace  in  it  any  thing  that 


\ 


160  THE    PRINCIPLES    OP    PLEADING. 

the  party  is  not  bound  to  prove  exactly  as  laid,  as  the  day, 
the  place,  the  sum  in  assumpsit,  the  amount  won  at  gam- 
ing, which  forms  part  of  the  consideration  of  a  bond,  which 
the  Statute  makes  void,  if  any  part  of  the  consideration  be 
of  that  nature. 

Thus,  a  plea  that  the  defendant  did  not  promise  to  pay 
to  the  plaintiff  the  said  sum  of  SI 00  is  bad.  It  should  be 
that  he  did  not  promise  in  manner  and  form  as  the  plain- 
tiff has  alleged.  These  words,  i  manner  and  form'  are 
never  construed  to  embrace  any  thing  immaterial. 

So  if  a  number  of  independent  facts  are  alleged,  any 
one  of  which  alone  would  support  the  party's  case,  and  the 
whole  are  connected  together  by  the  conjunction  and,  they 
must  not  be  traversed  conjunctively,  for  an  issue  taken  on 
such  a  traverse  would  require  proof  of  all  the  facts  when 
any  one  might  do.  They  should  therefore  be  traversed 
disjunctively. 

But  it  seems  that  if  a  party  thinks  proper,  in  setting 
forth  his  title  or  estate,  to  claim  a  larger  estate  or  interest 
than  the  exigency  of  the  case  makes  necessary,  yet  his 
adversary  has  a  right  to  traverse  it  as  alleged.  But  a  recent 
case  (1.  Brod  and  Bing  531.)  makes  it  doubtful  whether, 
on  such  an  issue,  it  would  be  necessary  to  prove  any  thing 
more  than  would  have  been  sufficient  if  he  had  plead  it ; 
as  for  example  a  seisin  for  life,  where  he  has  plead  a  seisin 
in  fee,  if  a  seisin  for  life  might  have  been  sufficient  for  the 
purposes  of  the  action.  Such  certainly  would  be  the  case 
if  the  seisin  had  been  traversed  '  in  manner  and  form.'  But 
the  proposition  that  when  the  seisin  in  fee  is  traversed  in 
terms,  proof  of  any  less  estate  will  support  the  affirmative 
of  the  issue,  is  at  least  questionable.  The  case  referred 
to  is  obscure,  and  perhaps  I  mistake  its  meaning. 

3.  A  Traverse  must  not  be  too  narrow. 

To  rely  on  a  traverse  of  part  of  a  demand  as  an  answer 
to  the  whole  is  manifestly  wrong.     Hence  a  demand  for 


THE    PRINCIPLES    OF    PLEADING.  161 

ten  years  service  cannot  be  defeated  by  denying  the 
service  for  part  of  the  time.  Nor  is  it  necessary  to  plead 
this  as  an  answer  pro  tanto.  On  the  plea  of  non  assumpsit 
the  plaintiff  must  prove  what  he  can,  and  will  only  recover 
for  what  he  proves. 

So  a  traverse  will  be  too  narrow  if  it  applies  only  to 
part  of  a  thing  indivisible  in  its  nature,  as,  for  example,  a 
prescription. 

section  in. 

OF    RULES    WHICH    TEND     TO    PRODUCE    CERTAINTY    OR 
PARTICULARITY    IN    THE    ISSUE. 

I  have  already  explained  what  certainty  is,  and  spoken 
of  one  of  the  considerations  which  render  it  necessary  ;  to 
wit ;  1.  that,  if  a  declaration  be  so  uncertain,  that  any 
judgment,  which  may  be  entered  on  it  for  want  of  a  plea, 
will  be  liable  to  be  set  aside  as  irregular,  or  reversed  as 
erroneous,  the  defendant  can  lose  nothing  by  not  pleading. 
Of  course,  if  by  demurrer,  he  demands  judgment  of  the 
court,  whether  he  is  under  any  necessity  to  plead,  the 
judgment  will  be  that  he  is  not,  or,  in  other  words,  his 
demurrer  will  be  sustained. 

2.  Another  use  of  certainty  is  to  apprise  the  adversary 
of  the  facts  to  be  proved,  that  he  may  not  be  taken  by 
surprise.  The  justice  and  fairness  of  this  are  obvious,  and 
the  respect  paid  to  them  is  manifested  in  the  rule,  that,  at 
the  trial  the  probata  must  correspond  with  the  allegata. 

3.  A  third  use  of  certainty  is  to  enable  the  jury  to 
understand  clearly  the  fact  they  are  sworn  to  try. 

4.  A  fourth  use  of  certainty  is  to  enable  the  court  to  know 
what  judgment  to  give.  For  the  judgment  being  the 
conclusion  of  the  law  from  the  facts  of  the  case,  and  the 
facts  being  collected  from  the  admissions  of  the  parties 
and  the  verdict  of  the  jury,  if  there  be  uncertainty  in 

14* 


162  THE   PRINCIPLES    OP   PLEADING. 

these  it  must  be  uncertain  what  judgment  is  to  be  given. 
Let  it  be  remembered  that  the  verdict  is  generally  in  the. 
very  words  of  the  traverse,  and  it  must  be  manifest  that  the 
uncertainty  which  may  be  found  in  the  pleadings  cannot 
be  corrected  by  the  verdict. 

Thus  in  trespass  the  defendant  says  he  is  not  guilty, 
and  the  jury  say  he  is  guilty  in  manner  and  form  as 
charged  in  the  declaration.  You  must  look  then  to  that, 
to  know  of  what  he  is  guilty,  and  if  the  matter  be  so 
vaguely  charged  that  the  court  cannot  see  that  a  good 
cause  of  action  is  there  stated,  they  can  give  no  judgment 
on  such  a  finding. 

So  when  the  defendant  pleads  in  avoidance.  The 
verdict  if  for  him  is  in  the  words  of  the  traverse  taken 
from  his  plea.  If  these  are  so  vague  as  to  leave  it  doubt- 
ful whether  the  matter  therein  stated  is  an  avoidance  in 
law,  no  judgment  can  be  given  on  such  a  finding. 

5.  A  fifth  use  of  certainty  is  to  afford  to  the  plaintiff,  if 
successful,  the  full  benefit  of  all  the  facts  ascertained  in 
the  case,  in  any  future  controversy ;  and  to  protect  the 
defendant,  whether  successful,  or  no,  from  ever  being 
again  harassed  about  the  same  matter. 

All  these  are  substantial  considerations,  for  neglect  of 

which  pleadings  will  be  and  ought  to  be  condemned.     For 

any  certainty  beyond  this,  and  for  any  purposes  but  these, 

I  see  no  use.     Hence  I  conceive  that  some  of  the  rules  on 

this  subject  are  truly  salutary ;  others  idle,  superfluous  and 

arbitrary. 

RULE  I. 

Pleadings  must  Ivave  certainty  of  place. 

If  it  were  required  of  the  party,  in  all  cases,  to  prove 
the  place  as  laid,  then  the  second  and  fifth  reasons  given 
above  would  make  this  an  important  rule.  No  doubt  it 
took  its  rise,  in  part,  in  these  considerations,  and  that,  at 


THE    PRINCIPLES    OF    PLEADING.  163 

first  the  proof  was  required  to  conform  in  this  respect  to 
the  allegation.  But  though  such  proof  has  long  since 
been  dispensed  with,  the  form  is  still  adhered  to.  This 
may  have  been,  in  part,  because  it  is  easier  to  retain  an 
old  form  than  to  fabricate  a  new  one,  but  mainly  because 
of  the  considerations  I  have  heretofore  mentioned  in 
speaking  of  venue.  But  I  there  showed  that  these  con- 
siderations do  not  at  all  apply  with  us,  and  therefore  no 
reason  for  requiring  certainty  of  place  remains,  except 
that  it  is  found  in  all  the  old  forms.  With  all  my  respect 
for  these,  and  my  wish  to  see  them  retained,  I  beg  leave 
to  suggest  that  the  want  of  certainty  of  place  ought  not 
in  Virginia  to  be  deemed  a  good  ground  even  of  special 
demurrer  in  transitory  actions. 

I  confine  the  remark  to  transitory  actions,  because,  in 
local  actions,  the  jurisdiction  is  determined  by  the  locality 
of  the  subject  of  controversy.  Hence,  in  all  such,  certainty 
of  place  is  indispensable. 

I  take  the  liberty  to  add  that  I  think  an  opinion  is 
beginning  to  prevail  in  conformity  with  that  I  have  ex- 
pressed ;  that  the  want  of  venue  is  no  cause  of  special 
demurrer. 

RULE  II. 

The  pleadings  must  have  certainty  of  Time. 

Here  again  I  will  remark,  that  if,  in  all  cases,  the  party 
were  required  to  prove  the  time  as  laid,  the  second  and 
fifth  reasons  above  mentioned  would  support  this  rule. 
But  as,  in  most  cases,  this  is  not  required,  there  is  nothing 
in  favor  of  it,  except  as  applied  to  the  few  actions  in 
which  time  forms  an  element  in  the  facts  or  the  law  of  a 
case.  When  time  is  specified  as  a  point  from  which 
interest  is  to  be  computed,  or  as  the  commencement  or 
termination  of  a  service  or  a  lease,  it  ought  to  be  stated 


164  THE    PRINCIPLES    OF    PLEADING. 

truly,  and  proved  as  stated,  because  on  that  depends  the 
quantum  to  be  assessed  by  the  Jury.  So  in  usury,  where 
the  time  of  forbearance  is  to  be  compared  with  the  interest 
to  be  paid,  the  beginning  and  end  of  it  are  to  be  precisely 
set  down,  that  the  court  may  see  whether  the  matter 
amounts  to  usury ;  and  if  it  be  traversed,  then  it  must  be 
proved  as  laid.  But  at  this  day  I  can  see  no  reason  why 
the  omission  o£-a  date  should  be  reckoned  good  cause  even 
of  special  demurrer,  in  any  case  in  which,  though  one  time 
be  laid,  another  may  be  proved.  I  beg  leave  to  suggest 
that  much  of  the  embarrassment  which  attends  trials 
would  be  avoided  if,  as  far  as  possible,  neither  party  were 
required  to  allege  any  thing  that  he  is  not  bound  to  prove. 
The  question  '  what  he  must  prove,'  would  then  be  deci- 
ded before  hand  on  the  pleadings;  and,  by  looking  at 
these,  each  party  would  see  clearly  the  evidence  necessary 
to  support  the  affirmative  of  the  issue,  and  prepare 
accordingly. 

RULE  III. 

Pleadings  must  specify  quantity,  quality  and  value. 

A  part  of  this  Rule  furnishes  an  example  of  the  excep- 
tions which  must  be  made  to  the  generality  of  the  last 
remark.  There  is  a  reason  why  quantity  should  be 
stated,  and  there  are  abundant  reasons  why  the  party 
should  not  be  held  to  prove  it  exactly.  These  last  are 
obvious.  The  party  may  not  know,  for  example,  how 
much  corn  the  defendant  has  taken :  how  many  trees  he 
has  cut :  &c.  —  and  moreover  if  he  had  the  means  of 
knowing,  the  discussion  might  terminate  in  a  controversy 
about  an  infinitesimal  part  of  a  lineal,  square,  or  solid 
measure.  But  though  the  plaintiff,  who  has  lost  twenty 
sheep,  may  be  mistaken  in  supposing  that  the  defendant 
took  them  all,  and  ought  not  to  be  defeated  in  trespass  de 


TIIE   PRINCIPLES    OP   PLEADING.  165 

bonis  aspor talis  because  he  can  only  prove  nineteen  upon 
him ;  yet,  for  the  5th  reason  above  stated,  the  defendant 
who  is  made  to  pay  for  them  has  a  right  to  have  such  an 
account  of  the  matter  in  the  record,  as  shall  secure  him 
against  being  again  harassed  for  the  same  cause.  The 
general  verdict  of  guilty,  on  the  plea  of  not  guilty,  does 
not  show  how  many  he  has  been  made  to  pay  for,  and  this 
therefore  ought  to  appear  in  the  declaration.  If  the 
plaintiff  then  should  afterwards  get  more  testimony,  and 
find  himself  prepared  to  prove  that  in  fact  the  defendant 
had,  at  the  same  time,  taken  fifty,  the  former  recovery 
will  be  a  bar  as  to  the  twenty  which  were  the  subject 
of  the  first  suit.  The  plaintiff  can  only  recover  the 
other  thirty,  and  thus  he  will  lose  the  value  of  one  sheep. 
Hence,  in  all  such  cases  he  should  be  careful,  for  his  own 
sake,  not  to  charge  too  much.  But  unless  restrained  by 
such  considerations  there  is  no  limit  to  the  number  he  may 
set  down,  for  the  more  he  charges,  the  more  extensive  the 
bar  to  future  actions,  and  therefore  the  better  for  the 
defendant. 

Nothing  here  said  applies  to  either  quantity,  quality  or 
value,  when  set  forth  in  a  contract  which  is  plead,  for  the 
contract  must  be  described  truly,  and  if  these  particulars 
appear  therein,  they  must  appear  in  the  pleadings  also. 
So  too  they  must  be  specified  by  him  who  pleads  perform- 
ance of  such  a  contract.  The  like  precision  is  necessary 
in  setting  forth  a  demand  or  tender  of  performance.  But 
in  all  these  cases  it  is  obvious  that  these  things  form  a  part 
of  the  issue  and  must  be  proved  as  laid. 

To  the  subject  of  value  I  would  apply  the  same  general 
remark  which  has  been  made  in  regard  to  place  and  time. 
It  can  never  be  a  part  of  the  issue  (except  in  detinue) 
unless  made  so  by  contract. 

The  rule  as  it  respects  quality  is  too  general.  It  is  not 
always  necessary  to  allege  it,  and  as  it  must  always  be 


166  THE   PRINCIPLES    OF   PLEADING. 

proved  as  laid,  the  pleader  should  be  careful  not  to  use 
superfluous  particularity.  How  much  is  necessary  will 
depend  on  the  nature  of  the  thing  and  of  the  action,  and 
for  this  I  refer  the  reader  to  what  is  said  by  others  on 
this  subject,  in  treating  of  particular  actions.  I  will  only 
illustrate  my  meaning  by  an  instance.  In  detinue,  where 
a  specific  thing  is  to  be  recovered,  it  should  be  so  described 
as  to  identify  it  as  nearly  as  practicable  ;  so  that  when  it 
is  delivered  to  the  sheriff  he  may  know  it  to  be"  the  same. 
In  trespass  for  an  injury  to  the  same  piece  of  property,  no 
such  particularity  is  necessary. 

RULE  IV. 
Pleadings  must  specify  names  of  persons. 

As  to  the  names  of  the  parties,  a  mistake  in  this  can 
only  be  taken  advantage  of  by  plea  in  abatement,  of  which 
I  intend  to  speak  hereafter. 

The  names  of  other  persons  belong  to  the  category  of 
facts,  to  be  proved  as  laid.  The  name  is  the  means  by 
which,  prima  facie,  the  law  identifies  a  man,  and  the 
necessary  correspondence  between  the  allegata  and  the 
probata  can  never  be  satisfied  by  proving  that  to  be  true 
of  one  man,  which  has  been  averred  of  another. 

RULE  V. 

Pleadings  must  sJiow  title. 

Every  claim  of  right  or  authority  must  be  supported  by 
setting  forth  the  title  of  the  party  himself  or  of  him  from 
whom  he  derives  his  authority. 

The  nature  of  the  title  to  be  shown  will  depend  on  the 
nature  of  the  action,  of  which  I  do  not  propose  to  speak 
in  detail.     In  some  cases  possession  is  enough.     In  others 


THE    PRINCIPLES    OF    PLEADING.  167 

the  right  of  possession  must  be  shown.  In  others  the 
right  of  property.  A  single  instance  will  illustrate  the 
accuracy  with  which  the  law  discriminates,  and  its  reasons. 

Possession  alone  is  title  enough  against  a  wrong  doer, 
and  will  support  quare  clausum  fugit  against  any  hut  him 
who  has  the  right  of  possession.  But  if  the  tenant  distrain 
the  cattle  of  a  stranger  damage  feasant,  then,  in  replevin 
he  must  show  a  right  of  possession.  Having  taken  the 
law  into  his  own  hands,  and  invaded  the  property  of  his 
neighbor,  he  must  show  that  he  had  a  better  right  to  be 
on  the  premises  than  the  beasts  that  he  impounded  for 
being  there. 

As  to  the  manner  of  stating  the  title,  where  the  party 
claims  any  thing  more  than  the  naked  possession,  that  will 
depend  on  the  nature  of  the  estate.  If  he  claims  a  fee  it 
is  enough  to  say  that  he  was  seised  in  fee.  If  a  less 
estate,  he  must  show  a  seisin  in  fee  in  some  person  from 
whom  his  estate  was  derived,  and  trace  it  down,  it  may  be 
through  a  tenant  in  tail  and  a  tenant  for  life  and  a  number 
of  assignments  to  himself  or  the  person  whose  authority 
he  pleads. 

"Where  indeed  the  party  who  claims  the  fee  has  occasion 
to  allege  a  former  seisin  in  another  (as  in  debt  for  rent  on 
a  lease  by  the  former  owner,)  he  must  show  how  the  title 
of  the  other  has  come  to  him.  So  where  both  parties  claim 
under  the  same  former  owner  of  the  fee,  and  the  case 
depends  on  priority  of  title,  each  must  trace  his  title  to  that 
person,  though  one  may  claim  a  fee  simple,  and  in  such 
cases  time  (the  date  of  each  conveyance)  will  be  of  the 
substance  of  the  issue. 

Where  the  title  to  a  particular  estate  is  stated  by  way 
of  inducement,  and  recital,  then  the  derivation  from  the 
fee  needs  not  to  be  traced.  It  is  not  traversable,  and  need 
not  be  set  forth  with  the  amplitude  or  precision  necessary 
in  averring  a  title  which  may  be  traversed. 


168  THE    PRINCIPLES    OF    PLEADING. 

On  the  subject  of  derivation  of  title,  I  find  the  following 
additional  rules  laid  down  by  Stephens. 

1.  Where  a  party  claims  as  heir,  he  must,  in  general, 
show  hoiv  he  is  heir,  to  icit,  as  son  or  brother,  &c.,  and 
where  the  descent  is  not  immediate,  lie  micst  trace  his 
pedigree,  to  wit,  as  son  and  heir  of  A.,  who  was  brother 
and  heir,  &c. 

2.  Where  a  party  claims  by  alienation,  the  nature  of 
the  alienation  must,  in  general,  be  shown :  as  whether  it 
be  by  devise,  feoffment,  release,  &c.  &c. 

3.  In  pleading  such  conveyance,  it  must  be  stated 
according  to  its  legal  effect,  rather  than  its  form.  This 
is  one  instance  of  a  more  general  rule,  which  is,  that  every 
thing  must  be  pleaded  according  to  its  legal  effect.  As 
applied  to  conveyances,  it  means,  e.  g.  that  a  feoffment  of 
one  joint  tenant  to  another,  must  be  plead  as  a  release ; 
that  of  a  tenant  to  his  lord,  as  a  surrender,  &c. 

4.  Where  the  nature  of  a  conveyance  is  such,  that  it 
would,  at  common  law,  be  valid  without  deed,  or  writing, 
there  no  deed  or  writing  need  be  alleged  in  the  pleading, 
though  such  document  be  made  necessary  by  Statute,  and 
may  in  fact  exist,  but  where  the  nature  of  the  conveyance 
required  a  deed,  or  other  instrument,  according  to  the 
Common  Law,  then  such  instrument  must  be  alleged. 

This  rule  seems  to  be  no  more  than  an  instance  of  a 
more  general  rule  to  be  stated  hereafter :  viz.  '  that  matter 
of  evidence  is  not  to  be  set  forth.'  Now  the  Statute  does 
but  require  the  deed  as  evidence  of  the  fact  by  which  the 
title  passed  according  to  the  common  law.  In  feoffment, 
the  title  passes  still  by  livery,  but  not  unless  accompanied 
or  followed  by  a  deed,  which  proves  it  to  have  been  made. 
Nor  is  this  confined  to  conveyances  of  real  property.  No, 
action  can  be  maintained  on  a  promise  to  pay  another's 
debt,  unless  it  be  witnessed  by  writing.  But  a  subsequent 
writing,  acknowledging  that  the  promise  had  been  made, 


THE    PRINCIPLES    OP    PLEADING.  169 

will  do.  Yet  the  action  is  not  founded  on  that,  but  on  the 
promise  proved  by  it,  and  it  is  the  office  of  the  pleading  to 
aver  the  fact,  and  not  the  evidence  of  the  fact,  because,  in 
general,  this  averment  may  be  true,  and  the  fact  to  be 
proved  may  nevertheless  not  be  true.  The  only  exception 
proves  the  reason  of  the  rule.  In  debt  on  bond,  the  plain- 
tiff does  not  aver  the  indebtedness,  but  only  the  execution 
of  the  bond  by  which  it  is  acknowledged.  This  is  enough, 
because  if  the  fact  of  indebtedness  has  been,  as  is  alleged, 
acknowledged  under  seal,  it  is  incontrovertibly  true,  in  the 
eye  of  the  law.  There  are  some  exceptions,  rather  appar- 
ent than  real,  as  I  conceive,  to  the  rule  as  stated  above,  of 
which  I  do  not  speak  here. 

There  is  one  case,  and  one  only,  in  which  a  title,  not 
resting  on  the  naked  possession,  may  be  plead,  without 
setting  forth  the  estate  of  the  party  any  farther  than  to 
say,  that  the  locus  hi  quo  is  his  freehold.  This  is  the  plea 
in  Trespass  quare  clausum  /regit,  when  the  defendant 
justifies  on  the  ground  of  a  right  of  possession  of  a  free- 
hold estate.  Tins  he  does  by  averring  that  the  close  men- 
tioned was  and  is  his  close,  soil,  and  freehold,  wherefore 
he  entered,  &c,  &c,  as  lawfully  he  might.  Proof  of  any 
freehold  estate  will  support  this  plea,  and  though  it  be  but 
a  life  estate,  the  commencement  need  not  be  shown  in  the 
plea. 

What  has  been  said  applies  to  the  statement  of  the  title 
of  the  party  pleading,  or  that  of  him  under  whose  author- 
ity he  pleads.  It  remains  to  speak  of  those  cases  in  which 
it  may  be  necessary  to  aver  a  title  in  the  opposite  party. 
Here  the  law  recognizes  the  distinction  which  common 
sense  suggests;  and  while  it  requires  a  particular  state- 
ment of  the  party's  own  title,  of  which  he  is  supposed  to 
know  every  thing,  it  is  content  with  a  very  loose  account 
of  that  of  his  adversary,  of  which  he  may  know  little  or 
nothing.  The  pleader  is  not  supposed  to  be  acquainted 
15 


170  THE    PRINCIPLES    OF    PLEADING. 

with  his  adversary's  pedigree,  and  so  he  charges  him  as 
heir,  without  saying  whether  as  Son,  Brother,  or  other- 
wise. He  knows  nothing  of  his  title  deeds,  but  having  set 
forth  e.  g.  a  lease  to  A.,  says  that  the  premises  came  by 
assignment  to  B.,  without  tracing  the  chain  of  title  along 
its  several  links. 

It  remains  to  add  that  the  title  must  be  proved  as  laid  ; 
this  being  one  of  the  cases  in  which  all  the  objects  for 
which  certainty  is  required,  conspire  to  make  it  desirable, 
not  merely,  pro  forma,  in  the  pleadings,  but  in  the  issue 
and  verdict  of  which  title  is  an  essential  part.  Hence,  the 
•probata  must  support  the  allegata.  Moreover,  as  it  is 
never  necessary  to  state  what  the  other  party  is  not  at 
liberty  to  deny,  (as  in  the  familiar  case  of  the  considera- 
tion of  a  bond,)  so  in  regard  to  title,  it  need  not  be  set 
forth  against  one,  who,  coming  in  under  it,  is  estopped  to 
deny  it. 

RULE  VI. 

Pleadings  must  show  authority. 

Whoever  will  justify  under  a  writ,  warrant,  or  other 
authority,  must  set  it  forth  particularly,  and  prove  it  as 
laid.  Thus,  an  officer  who  justifies  under  an  execution, 
must  set  it  forth ;  but  he  need  not  say  any  thing  of  the 
judgment,  for  of  that  he  is  not  to  enquire,  being  the  ser- 
vant of  the  court  whose  writ  has  come  to  him,  commanding 
what  he  has  done.  The  same  may  be  said  of  those  who 
are  called  on  by  the  Sheriff  to  aid  him.  But  all  others 
must  plead  the  judgment  as  well  as  the  execution,  though 
it  is  not  necessary  to  state  the  cause  of  action,  or  the  pro- 
ceedings in  the  suit. 

In  England  it  is  said,  that  he  who  justifies  under  process 
of  a  Court  of  Inferior,  or  limited  jurisdiction,  must 
show  the  nature  and  extent  of  the  jurisdiction,  and  set 


THE    PRINCIPLES    OF    PLEADING.  171 

forth  a  case  coming  within  the  scope  of  it,  and  moreover, 
must  set  forth  the  proceedings  so  far  as  to  say  that  the 
action  was  commenced,  and  such  proceedings  had  as  that 
thereupon  judgment  was  given,  &c. 

On  this  subject,  it  might  be  enough  to  say,  that  we  have 
no  such  courts,  but  that  some  seem  to  think  that  our  cor- 
poration or  borough  courts  are  such.  An  examination  of 
the  English  cases  will  show  that  this  is  a  mistake,  and  I 
proceed  to  expose  it,  less  because  of  the  importance  of  the 
thing  itself,  than  to  vindicate  the  system  of  pleading  from 
the  absurdity  which  has  grown  out  of  it.  I  allude  to  the 
absurdity  of  requiring  of  any  pleader  to  aver  a  matter  of 
law,  and  holding  the  omission  to  be  fatal. 

Courts  of  Inferior  Jurisdiction  are  not  Inferior  Courts 
of  the  same  Jurisdiction.  We  have  but  one  Jurisdiction. 
In  England  there  are  several.  Take  the  County  palatine 
of  Chester  as  an  example.  The  Jurisdiction  there  is  not 
that  of  the  King,  but  the  Count  palatine,  at  least  as  to 
certain  matters  over  which  he  is  allowed  to  exercise  it. 
These  are  the  relics  of  that  baronial  authority  which  every 
feudal  Lord  once  exercised  over  his  own  vassals.  It  was 
once  universal,  but  has  been  brought  under  restraint,  and 
made  harmless  by  the  King's  courts,  operating  by  the  writ 
of  Certiorari.  In  almost  all  the  subordinate  jurisdictions, 
it  has  been  swept  away  ;  but  in  those  which  belong  to  the 
King  himself,  a  sort  of  baby-house  royalty  is  still  main- 
tained, with  an  apparatus  of  Courts  that  are  still  allowed 
to  exercise  a  petty  jurisdiction,  not  inconsistent  with  the 
good  of  the  nation  at  large.  If  they  meddle  with  what 
does  not  belong  to  them,  the  Court  of  King's  Bench,  by 
certiorari,  orders  the  case  to  its  own  bar.  But  while  they 
keep  within  their  jurisdiction,  they  proceed  by  laws  and 
rules  which  are  no  part  of  the  law  of  the  land,  and  which 
the  King's  Judges  do  not  condescend  to  know.  In  the 
King's  Courts,  they  belong  to  the  category  of  fact,  not 


172  THE    PRINCIPLES    OF    PLEADING. 

law ;  though  this  toleration  of  their  petty  jurisdiction  is 
owing  to  the  fact,  that  the  same  man  who  is  Count  Palatine 
of  Chester,  is,  and  for  many  generations  has  been,  King 
of  England.  His  jurisdiction,  as  such,  is  as  far  inferior, 
and  as  much  subordinate  to  the  Jurisdiction  of  the  Crown, 
as  if  another  person  were  on  the  throne ;  and  the  small 
remnants  of  the  baronial  laws  which  are  permitted  to 
remain,  are  no  more  a  part  of  the  law  of  England,  than 
were  those  of  the  self-styled  Kingdom  of  Man,  before  they 
were  suppressed.  The  Palatine  Court  is  a  court  of  an 
Inferior  Jurisdiction;  not  an  inferior  court  of  the  same 
jurisdiction.  If  it  were,  its  jurisdiction  would  be  matter 
of  law,  noticed  by  the  King's  Courts  ex  officio,  and  not  to 
be  plead. 

The  same  sort  of  reasoning  applies  to  Courts  of  limited 
jurisdiction  created  by  Charter.  Such  Charters  are  no 
part  of  the  law  of  the  land.  Whenever  relied  on  for  any 
purposes,  they  must  be  plead  as  facts.  It  is  not  known  to 
the  Court  as  such,  that  the  Borough  of  has, 

by  charter,  a  right  to  hold  a  Court,  and  to  decide  contro- 
versies between  the  inhabitants  of  the  borough.  These 
are  facts  to  be  brought  to  the  knowledge  of  the  Court  by 
the  pleadings ;  so  that  to  entitle  a  judgment  of  such  a  court 
to  any  authority  in  the  King's  Court,  it  must  be  averred 
that  there  is  such  a  Court,  that  such  is  its  jurisdiction,  and 
that  the  parties  both  did  actually  reside  in  the  borough. 
This  is  the  regular  way  of  pleading  such  judgments,  though 
sometimes,  (to  avoid  prolixity,  perhaps,)  it  seems  to  have 
been  held  sufficient  to  aver  that  the  case  was  within  the 
Jurisdiction  of  the  Court,  and  to  show  how,  by  the  evi- 
dence, and  not  in  the  pleadings. 

I  have  dwelt  thus  much  on  a  matter  which  ought  not  to 
concern  us,  because  it  has  been  strangely  enough  applied 
to  Hustings  and  Borough  Courts,  established  by  the  Law 
of  the    Land,  upon  the  same  footing  and  with  the  same 


THE    PRINCIPLES    OF    PLEADING.  173 

jurisdiction  as  the  County  Courts.  Judgments  rendered 
in  such  Courts,  have  been  reversed  in  the  Court  of  appeals, 
because,  although  the  record  plainly  showed  a  case  within 
the  Jurisdiction  of  the  Court,  the  statement  was  not  fol- 
lowed by  an  averment  that  the  case  was  within  its  juris- 
diction. Can  we  wonder  that  the  science  of  pleading  fell 
into  disrepute  with  men,  who  were  thus  baffled  in  the 
pursuit  of  Justice,  and  taxed  with  heavy  costs,  because 
the  plaintiff  did  not  dream  of  the  necessity  of  informing 
the  Court,  by  his  declaration,  of  the  extent  of  its  mvn 
jurisdiction  ?  Was  the  averment  to  be  put  there,  to  be 
traversed  and  tried  by  the  Jury,  that  the  Court  might  learn 
the  extent  of  its  jurisdiction  from  them  ?  All  matters  of 
fact  are  to  be  tried  by  the  Jury,  and  must  be  averred  that 
they  may  be  traversed,  and  so  put  in  the  issue.  But  mat- 
ters of  Law !  —  The  court  knows  the  law  already.  Here 
is  an  example  of  the  reproach  often  cast  on  the  system  of 
pleading,  because  of  Injustice  done  through  neglect  or 
misapplication  of  its  rules. 

RULE  VII. 

Whatever  is  alleged  in  pleading  must  be  alleged  with  certainty. 

Were  this  rule  universally  true,  it  would  be  no  guide  to 
the  pleader;  inasmuch  as  the  degree  of  certainty  depends  on 
the  nature  of  the  facts  and  the  form  of  the  action.  How  muck 
is  necessary  in  each  case,  can  only  be  learned  by  the  study 
of  the  several  actions,  by  the  established  forms,  and  by 
experience.  But  it  is  not  universally  true.  It  once  was 
so  ;  but  the  attempt  to  apply  it  to  actions  on  the  case  on 
promises  to  pay  money,  proved  futile,  and  ended  in  con- 
fusion. At  this  day,  in  such  an  action,  the  gist  of  which 
is  the  consideration,  the  words  'work  and  labor  done,' 
will  let  in  proof  of  any  consideration  in  the  nature  of 
service  rendered,  from  the  going  on  an  errand  to  the 
15* 


174  THE    PRINCIPLES    OF    PLEADING. 

building  of  a  ship  of  the  line.  If  indeed  this  be  called 
certainty,  as  being  distinguished  from  '  goods  sold,'  I  can 
only  say  that  is  the  infinitesimal  minimum  of  that  quality. 
The  maximum  is  found  in  the  same  action,  when  founded 
on  a  promise  to  do  any  thing  else  besides  paying  money. 
But  the  action  of  assumpsit  is  an  outlaw  from  the  rules  of 
pleading,  and  the  difficulties  and  uncertainty  that  attend 
it  show  their  value. 

These  rules  are  qualified  by  certain  others,  which  hi 
some  degree  modify  and  restrict  them.  These  I  proceed 
to  state  and  explain. 

1.  It  is  not  necessary  in  'pleading  to  state  that  which 
is  merely  matter  of  evidence.  One  application  of  this  rule 
is  to  cases  where  the  party  relies  on  a  general  result, 
arising  out  of  a  number  of  facts.  If  this  result  is  a  con- 
clusion of  law,  then  the  facts  from  which  it  flows  must  be 
stated  in  detail.  If  the  result  itself  belongs  to  the  category 
of  fact,  it  is  not  only  not  necessary,  but  not  allowable,  to 
set  forth  the  details.  The  result  must  be  averred  as  a 
fact,  and  the  particulars  given  in  evidence  in  proof  of  it. 
An  example  of  each  kind  will  explain  this. 

In  pleading  a  notice  to  quit  to  a  tenant  from  year  to 
year,  it  is  not  enough  to  say,  that  due,  or  reasonable,  or 
sufficient,  or  legal  notice  was  given.  The  commencement 
and  termination  of  the  year  must  be  shown,  and  the  time 
when  the  notice  was  given  must  be  stated ;  at  least  so  far 
as  to  show  that  it  was  such  as  the  law  requires.  These 
facts  are  traversable,  and  when  the  court  has  decided  on 
their  sufficiency  in  Law,  the  jury  pronounces  on  their 
truth.  In  the  other  form  of  pleading,  if  issue  were  taken, 
the  Jury  would  be  called  on  to  perform  the  function  of  the 
Court  as  well  as  its  own,  the  issue  would  involve  matter 
of  Law,  and  the  verdict  would  be  a  response  to  a  question 
of  law.  Should  the  Jury  find  that  the  notice  was  not 
given,  it  might  be  because  they  did  not  believe  the  witness, 
or  because  they  thought  it  insufficient  in  Law. 


THE    PRINCIPLES    OF    PLEADING.  175 

Now,  suppose  an  action  brought  for  the  breach  of  a 
contract  to  cut  and  secure  a  crop  of  hay  in  a  husbandlike 
manner.  To  this  the  defendant  pleads,  that  he  cut  the 
grass  on  a  rainy  day,  and  stacked  it  up  immediately.  Is 
this  a  good  plea  ?  If  it  is  proper  to  state  the  particulars 
and  not  the  general  result,  the  plea  must  be  good,  unless 
it  be  bad  for  some  reason  of  which  the  law  knows  nothing. 
A  bench  of  Farmers  might  condemn  it,  but,  to  a  bench  of 
Judges,  it  is  as  good  as  if  it  had  said  that  the  grass  was 
cut  in  bright  weather,  sunned,  and  turned  till  perfectly 
cured,  and  put  into  a  barn  without  having  received  a  drop 
of  rain.  Should  the  plaintiff  demur,  the  demurrer  would 
be  overruled.  If  he  takes  issue,  the  defendant  is  prepared 
to  prove  his  facts.  The  jury  must  find  for  him,  and  the 
Court  must  give  him  a  judgment,  though  by  his  own 
showing  he  has  convinced  every  one  who  understands 
farming,  that  he  had  destroyed  the  crop.  Such  is  the 
effect  of  pleading  the  particulars  which  are  to  lead  to  a 
result  which  is  not  a  conclusion  of  law.  Had  the  defen- 
dant plead,  as  he  should  do,  that  he  had  cut  and  secured 
the  crop  in  a  husbandlike  manner,  he  must,  under  that 
plea,  first  prove  what  he  had  done,  and  then  show,  by  the 
opinion  of  experienced  farmers,  that  such  treatment  was 
husbandlike. 

2.  It  is  not  necessary  to  state  matter  of  which  the  court 
takes  notice  ex  officio. 

The  reasons  for  this  rule  are  to  be  found  passim  et 
sparsim,  throughout  this  work.  The  end  and  aim  of  the 
whole  proceeding  is  to  furnish  data  for  a  Judgment,  and 
if  the  record  shows  any  matter  already  known  to  the  court, 
it  must  be  so  far  superfluous.  The  Court  need  not  be  told 
of  the  law  of  the  land,  nor  of  many  things  which  seem,  at 
first,  to  belong  to  the  category  of  fact,  but  are  in  truth 
matters  of  law  (as  e.  g.  the  course  of  the  Calendar.)  All 
these  together  form  the  major  premise  of  the  judgment. 


176  THE    PRINCIPLES    OF    PLEADING. 

The  facts  make  the  minor,  and  these  the  pleadings  must 
show. 

3.  It  is  not  necessary  to  state  what  should  more  properly 
come  from  the  other  side. 

"When  the  Plaintiff  has  stated  so  much  that,  if  that  be 
true,  and  that  be  all,  he  would  be  entitled  to  recover,  he 
has  said  enough.  When  the  defendant  has  said  so  much 
that,  if  tliat  be  true  and  that  be  all,  the  action  should  be 
barred,  he  has  said  enough.  He  is  not  to  anticipate  and 
answer  before  hand,  what  may  be  said  by  his  adversary. 
To  do  this  would  be  to  produce  confusion. 

4.  It  is  not  necessary  to  allege  circumstances  necessarily 
implied. 

Thus  in  averring  a  feoffment  livery  is  implied  and  need 
not  be  mentioned.  To  plead  that  A.  is  the  heir  of  B. 
implies  that  B.  is  dead,  for  nemo  hceres  viventis. 

5.  It  is  not  necessary  to  allege  ivhat  the  laiv  ivill 
presume. 

Thus  in  slander,  the  plaintiff  need  not  aver  his  innocence 
of  the  matter  charged  against  him. 

6.  A  general  mode  of  pleading  is  allmved  where  great 
prolixity  is  thereby  avoided. 

Many  of  the  cases  which  are  put  under  this  head  belong 
to  the  first  rule.  In  its  application  to  other  cases  it  is 
impossible  to  define  its  extent. 

7.  A  general  mode  of  pleading  is  allowed,  ivhere  the 
answer  must  bring  the  matter  to  certainty. 

Thus  in  plea  to  debt  on  a  bond  conditioned  to  do  many 
things  under  the  general  description  of  all  it  is  not  neces- 
sary to  say  that  such  and  such  were  done,  and  that  these 
wire  all.  It  is  enough  to  say  that  all  was  done,  and  leave 
it  to  the  plaintiff  to  designate  what  was  not  clone. 

8.  No  greater  particularity  is  required  than  the  nature 
of  the  thing  pleaded  ivill  conveniently  admit. 

Thus   where   the   subject  of  the   action   is  the  utter 


THE    PRINCIPLES    OF    PLEADING.  177 

destruction  of  sundry  articles,  or  a  quantity  of  any  one 
article  as  by  burning,  devouring,  &c.  no  number  or  quantity 
need  be  named.  This  is  one  step  toward  dispensing  with 
the  statement  of  what  need  not  be  proved. 

9.  Less  particularity  is  required  in  stating  what  it 
belongs  to  the  other  party  to  know  best. 

The  manner  of  stating  the  title  of  the  adversary,  already 
spoken  of,  is  an  instance  of  this.  So  where  one  has  cove- 
nanted not  to  deal  in  a  certain  article,  in  an  action  for  the 
breach  of  this  covenant  the  plaintiff  need  not  specify  the 
instances  of  so  dealing,  or  the  persons  dealt  with. 

10.  Less  particularity  is  required  in  stating  matter  of 
inducement  or  aggravation. 

Thus,  under  Rule  V.  it  has  been  said  that  the  com- 
mencement of  a  particular  estate  need  not  be  set  forth, 
when  the  estate  is  only  mentioned  by  way  of  inducement. 
The  reason  has  been  shown  in  speaking  of  traverse.  "We 
saw  there  that  matter  of  inducement  is  not  to  be  traversed. 
The  same  is  said  of  matter  of  aggravation.  Now  as  the 
use  of  particularity  in  the  pleadings  is  to  procure  certainty 
in  the  issue  and  verdict,  there  can  be  no  need  of  it  in  those 
parts  of  the  pleading  out  of  which  no  issue  can  grow. 

11.  Acts  valid  at  common  law,  but  regulated  by  Statute, 
may  be  plead  as  before  the  Statute. 

Thus  a  feoffment  may  be  plead  without  saying  any  thing 
about  the  deed,  but  it  cannot  be  proved  without  producing 
the  deed  required  by  the  Statute.  The  promise  of  one  to 
pay  the  debt  of  another  may  be  charged,  without  saying  it 
was  in  writing,  though  according  to  the  Statute  it  must 
be  proved  by  writing.  This  case  shows  the  reason  and 
meaning  of  the  rule.  A  letter,  acknowledging  that  the 
promise  had  been  made,  will  support  the  action.  But  the 
action  is  on  the  promise,  not  on  the  letter.  So  in  a  feoff- 
ment, the  deed  and  livery  need  not  be  simultaneous.  The 
estate  still  passes  by  livery,  and  the  deed  proves  that. 


178  THE    PRINCIPLES    OF    PLEADING. 

Such  cases  have  been  already  noticed  under  Rule  I.  ante, 
p.  174.  And  here  I  will  make  a  remark  omitted  there.  The 
silence  of  one  party  admits  the  allegation  of  the  other.  The 
fact  is  alleged.  Silence  admits  it,  and  judgment  follows. 
But  suppose  it  be  not  the  fact,  but  the  evidence  which  is 
alleged.  Silence  only  admits  the  existence  of  the  evidence, 
but  not  the  fact.  Can  the  judgment  given  be  good  ?  No. 
The  necessary  data  are  not  in  the  record.  The  evidence 
may  exist,  and  yet  what  it  seems  to  prove  may  be  untrue. 
A  letter  acknowledging  a  promise  to  pay  the  debt  of  a 
third  person,  will  not  prevent  the  defendant  from  proving 
that  no  such  promise  ever  was  made.  The  only  exception 
proves  the  reason  of  all  this.  In  debt  on  bond,  the  plain- 
tiff does  not  aver  indebtedness,  but  only  the  acknowledge- 
ment, which  is  but  evidence.  But  this  is  enough  ;  for  the 
acknowledgment  being  under  seal,  the  defendant  is  estopped 
to  deny  the  fact,  so  that  the  silence  which  admits  the 
acJcnmvledgement  admits  the  fact,  which  is  thus  regarded 
in  law  as  true,  because  incontrovertible.  The  declaration 
is  quasi  a  pleading  by  way  of  estoppel. 

SECTION  IV. 

OF   RULES    WHICH    TEND    TO    PRODUCE    SINGLENESS    OR 
UNITY   IN   THE   ISSUE. 

RULE  I. 

Pleadings  must  not  he  doxMe. 

The  declaration  must  not  set  forth  two  or  more  distinct 
matters  as  the  ground  of  one  demand.  In  the  subsequent 
stages  of  the  action,  no  pleading  must  contain  more  than 
one  answer  to  the  preceding. 

The  object  of  this  rule  I  conceive  to  be  twofold.  The 
first  is  to  simplify  the  task  of  the  ignorant  and  simple  men 


THE    PRINCIPLES    OF    PLEADING.  179 

who  are  commonly  found  on  Juries.  It  is  with  this  view 
that  pleadings  are  drawn  out  to  issue  on  a  single  precise 
question  of  fact.  The  decision  of  this  is,  in  general,  easy. 
If  the  affirmant  proves  the  fact,  the  verdict  is  for  him  ;  if 
not,  against  him.  Where  an  issue  is  thus  deduced,  an 
honest  Jury  never  can  be  divided,  and  will  rarely  hesitate 
to  return  a  verdict  except  in  one  or  the  other  of  these 
cases : 

1.  "Where  there  is  contradictory  testimony,  and  some  of 
the  jury  believe  one  witness  —  some  another. 

2.  Where  the  evidence  is  circumstantial,  and  convinces 
some  of  the  Jury,  but  not  the  rest. 

This  simplicity  is  so  important,  that  it  deserves  to 
be  guarded,  and  it  is  guarded  by  this  rule. 

But  besides  this,  let  us  remember,  that  every  double 
plea  must  be  made  up  of  two  affirmatives,  or  two  negatives, 
or  one  of  each.  To  take  the  last  first ;  a  plea,  which  at 
once  traverses  and  confesses  and  avoids,  is  self  contra- 
dictory, and  necessarily  bad. 

If  two  distinct  facts,  both  necessary  to  the  adversary's 
case,  be  traversed,  the  affirmant  must  come  prepared  with 
testimony  in  support  of  all.  If  one  only,  he  is  required 
to  prove  no  more,  and  if  he  fails,  it  will  be  as  fatal,  as  if 
all  the  rest  had  been  traversed.  His  case  hangs  by  a 
chain  of  facts.  If  a?iy  one  link  breaks,  it  falls  to  the 
ground.  His  adversary  is  supposed  to  know  where  the 
chain  is  weakest;  and  is  required  to  strike  at  what  he 
conceives  to  be  the  most  unsound  link. 

This  slight  restraint  on  the  defendant's  power  to  baffle 
his  adversary,  seems  to  have  been  thought  a  hardship,  in 
modern  times ;  and  now,  by  Statute,  the  defendant  may 
plead  as  many  pleas  as  he  will.  Still  they  must  be  dis- 
tinct, so  as  to  end  in  distinct  issues,  and  each  plea,  sepa- 
rately, will  be  judged  by  the  same  rules  and  reasons, 
which  prevailed  before  the  Statute. 


180  THE    PRINCIPLES    OF    PLEADING. 

As  to  putting  two  affirmatives  in  the  same  plea ;  this 
would  be  a  folly  rarely  committed.  By  so  doing  the 
defendant  would  be  sure  of  a  verdict  against  him,  unless 
he  proved  the  whole  he  had  alleged ;  even  though  he 
should  prove  as  much,  as,  properly  plead,  would  have 
defeated  the  action.  Thus  the  defendant  could  not  plead 
the  same  paper  both  as  a  release  and  a  receipt ;  though  he 
might  be  doubtful  which  it  might  be,  in  the  eye  of  the 
law.  He  says  the  plaintiff  released,  and  that  he,  the 
defendant,  paid  ;  and  the  Jury  must  find  for  the  plaintiff  if 
the  defendant  fails  to  prove  the  whole  plea.  If  the  writing 
produced  does  not  contain  evidence  of  payment,  it  will  not 
support  that  part  of  the  plea ;  if  not  under  seal,  it  is  no 
release.  It  may  be  either,  but,  if  not  both,  the  Jury  cannot 
on  oath  say,  '  that  the  defendant  did  pay,  and  that  the 
plaintiff  did  release.' 

At  this  day,  by  the  Statute  above  spoken  of,  the 
defendant  may  plead  each  fact  in  a  separate  plea,  and  his 
failure  to  prove  one  will  not  prevent  a  verdict  and  judgment 
in  his  favor  on  the  other. 

Nothing  remains  therefore  of  the  i*easons  for  requiring 
singleness  in  the  plea,  but  that  first  mentioned  ;  viz  :  the 
importance  of  simplifying  the  task  of  the  Jury. 

As  to  the  necessity  for  singleness  in  the  declaration ;  the 
same  considerations,  which  would  deter  the  defendant  from 
putting  two  affirmative  defences  in  the  same  plea,  would 
decide  the  plaintiff  not  to  unite  two  causes  of  action,  and 
make  them  together  the  foundation  of  one  comprehensive 
demand.  To  do  this  would  be  to  endanger  the  loss  of  a 
I ilii in  case,  if  he  should  happen  to  associate  it  with  one  at 
all  doubtful.  And  even  if  both  were  plain,  he  would  lose 
nothing  by  bringing  two  several  actions,  as  the  costs  would 
fall  on  the  defendant.  But  this  consideration  made  it 
desirable  to  tin- defendant  himself,  that  the  plaintiff, having 
several  demands  against  him,  should  unite  them  in  one 


THE    PRINCIPLES    OF    PLEADING.  181 

action.  For  his  benefit  therefore  the  Courts  contrived  a 
means  by  which  the  plaintiff  might  combine  several  causes 
of  action  in  the  same  suit,  without  making  the  success  of 
any  one  depend  upon  the  rest.  This  is  done  by  means  of 
a  declaration  consisting  of  several  counts,  as  they  are 
called,  each  one  of  which  contains  a  precise  statement  of  a 
cause  of  action  distinct  from  all  the  rest.  Each  count 
contains  in  itself  all  the  essentials  of  a  declaration,  except 
the  commencement  and  conclusion,  which  are  common  to 
all.  Of  these  counts  the  plaintiff  proves  as  many  as  he 
can,  and  recovers  for  what  he  proves. 

I  have  said,  that  this  plan  was  introduced  for  the  benefit, 
and  at  the  instance  of  the  defendant  himself,  who,  finding 
himself  harassed  by  several  actions  of  the  same  kind  (as 
on  ten  different  bonds)  saved  nine  tenths  of  the  costs,  by 
obtaining  a  rule  to  compel  the  plaintiff  to  consolidate  the 
whole  in  one.  It  followed,  that  he  could  have  no  right  to 
object,  if  the  plaintiff,  consulting  his  interest,  and  antici- 
pating his  wish,  did  this  spontaneously.  The  consequence 
is  that,  of  the  rule  requiring  singleness  in  the  declaration, 
no  more  remains,  than  a  prohibition  to  blend  two  causes  of 
action  in  the  same  count. 

This  practice,  introduced  for  the  defendant's  benefit,  was 
soon  applied  by  plaintiffs  to  their  own  purposes.     Thus  it 
often  happens  that  the  plaintiff  may  not  know  exactly  what 
the  evidence  will  be :   but,  as  the  allegata  and  probata 
must  agree,  a  mistake  might  be  fatal.     Thus  a  man  is 
slandered ;  and  the  words  spoken  are  reported  differently 
by  different  persons,  though  slanderous  every  way.     He 
proceeds  then  as  if  each  account  of  the  matter  related  to 
a  separate  slander,  and,  after  setting  forth  in  the  first  count 
the    speaking   of  certain  slanderous   words,  goes   on,  in 
another  and  another,  to  charge  the  speaking  of  certain 
other  slanderous  words.     If  he  proves  any  one  set  he 
establishes  a  cause  of  action,  and  does  but  seem  to  forbear 
16 


182  THE    PRINCIPLES    OF    PLEADING. 

to  press  the  rest,  it  may  be  because  his  witnesses  are 
absent,  or  because  he  deems  it  superfluous,  or  because  he 
is  too  magnanimous  to  wish  to  ruin  the  defendant,  or  for 
any  other  reason  that  he  might  suggest,  or  for  no  reason 
at  all,  as  the  law  demands  none.  The  defendant  certainly 
has  no  mind  and  no  right  to  complain. 

Another  equally  important  use  of  this  device  is  this. 
The  plaintiff's  cause  of  action  being  made  up,  as  we  will 
suppose,  of  five  facts,  he  knows  certainly  that  he  can  prove 
four  of  them,  but  is  doubtful  whether  he  can  establish  the 
fifth.  At  the  same  time  he  is  doubtful,  whether  the  first- 
mentioned  four  constitute,  in  law,  a  good  cause  of  action, 
but  he  has  no  doubt  of  the  sufficiency  of  the  whole  five  if 
proved.  In  one  count  then,  he  states  all  five  facts ;  in 
another  only  the  four.  The  defendant  demurs  to  the  second 
count  as  insufficient.  If  the  demurrer  is  overruled,  the 
plaintiff  gives  himself  no  more  trouble  about  the  fifth  fact, 
offers  no  evidence  in  support  of  the  count  containing  it, 
and  recovers  on  the  other  count,  which  states  only  the 
four  facts  which  he  is  prepared  to  prove.  If,  on  the  other 
hand,  the  demurrer  to  the  second  count  be  sustained,  the 
plaintiff  has  thus  obtained  the  opinion  of  the  court,  that 
proof  of  the  fifth  fact  is  indispensable  ;  he  moves  heaven 
and  earth  to  obtain  it,  and  if  it  is  not  to  be  had,  dismisses  his 
action. 

It  remains  to  add,  that,  to  avoid  any  repugnancy  be- 
tween the  several  counts,  the  pleader  must  be  careful  to 
show,  that  he  is  not  giving  two  inconsistent  accounts  of 
the  same  matter,  by  using  the  word  other.  Thus,  having 
counted  of  a  horse  sold  at  an  agreed  price,  he  then  in 
another  count  claims  payment  for  a  certain  other  horse 
sold  for  what  he  might  be  worth.  If  the  witness  proves 
the  price  agreed  he  recovers  for  the  first  horse,  and  seems 
to  give  up  his  claim  to  the  other.  If  the  sale  be  proved, 
but  no  agreed  price  appear,  he  then  recovers  only  the 


THE    PRINCIPLES    OP    PLEADING.  183 

value  of  the  second  horse,  saying  nothing  about  the 
first. 

Still  it  is  not  admissible  to  blend  distinct  causes  of  action 
in  the  same  count.  Thus,  A  being  bound  by  bill  penal,  in 
the  penalty  of  $2,000,  to  pay  1,000  on  the  first  of  January 
and  1,000  more  on  the  first  of  June  following,  if  he  fails  to 
pay  the  first,  the  cause  of  action  is  complete.  So  if  he  had 
paid  the  first,  the  failure  to  pay  the  second  will  in  like 
manner  entitle  the  plaintiff  to  recover  the  penalty.  To 
state  both  breaches  then,  is  to  state  two  distinct  grounds  of 
action.  If  indeed  the  plaintiff  fears  the  defendant  may 
prove  the  January  payment,  and  wishes  also  to  rely  on 
the  failure  in  June,  he  adds  another  count,  in  which  he 
sets  forth  another  bill  penal  in  the  same  words,  and  in 
that  count  claims  the  penalty  on  the  ground  of  a  failure 
to  pay  in  June. 

The  case  of  an  action  of  covenant  is  somewhat  peculiar. 
The  plaintiff  there  states  as  many  breaches  as  he  thinks 
proper ;  but  then  each  breach  is  treated  as  a  separate 
count,  may  be  plead  to  separately,  and  lead  to  separate 
issues,  thus  avoiding  all  confusion. 

So  the  plea  is  not  considered  double,  because  it  gives 
one  answer  to  one  part  of  the  complaint,  and  another  to 
the  residue.  The  plea  must  answer  the  whole,  and  it 
may  be,  that  truth  requires  this  sort  of  answer.  To  re- 
strain the  defendant  from  giving  it  would  be  to  take  away 
his  true  defence,  and  force  him  to  rely  on  what  he  cannot 
prove.  Thus  on  an  account  of  many  years  standing,  the 
defendant,  as  to  all  barred  by  the  act  of  limitations,  says 
he  did  not  promise  within  five  years,  and  as  to  the  rest 
that  he  did  not  promise  at  all.  Under  this  last  plea,  it  will 
be  remembered,  he  may  prove  payment  of  the  part  not 
barred  by  the  act.  The  matter  of  the  plea  may  be  replied 
to  in  the  same  distributive  way,  and  so  of  all  the  subse- 
quent pleadings. 


184  THE    PRINCIPLES    OP    PLEADING. 

Though  the  declaration  may  contain  several  counts  ;  and 
the  defendant  may  file  as  many  distinct  pleas  to  each  as  he 
pleases,  yet  this  relaxation  of  the  Common  Law  goes  no 
farther.  When  we  come  to  the  replication,  rejoinder,  &c. 
the  rule  against  duplicity  applies  with  unmitigated  force ; 
so  that,  although  the  plaintiff  may  have  two  complete  and 
distinct  answers  to  the  plea,  he  must  choose  which  he  will 
rely  on,  and  rest  his  case  on  that  alone.  In  these  stages 
of  the  action,  therefore,  the  rule  has  lost  nothing  of  its  force 
or  importance  ;  and  hence  it  requires  to  be  understood  as 
fully,  as  if  the<above -mentioned  relaxations  had  never  been 
made.   It  is  necessary  therefore  to  enquire  what  is  duplicity. 

1.  A  pleading  ivill  be  double  that  contains  several 
ansivers,  whatever  be  the  class  or  quality  of  each.  The 
matters  may  be  all  in  abatement  or  all  in  bar,  all  of  denial, 
or  all  of  confession  and  avoidance  ;  or  some  may  be  of  one 
kind,  and  some  of  another.  In  every  case  the  plea  will 
be  bad. 

2.  Matter  may  suffice  to  make  a  pleading  double,  though 
it  be  ill  pleaded. 

If  material,  it  can  only  be  defeated  by  special  demurrer 
for  want  of  form.  If  not  demurred  to,  the  formal  defect 
is  waived.  If  not  answered,  it  is  admitted,  and  judgment 
should  follow.  It  must  then  be  answered,  as  much  as  if 
in  due  form ;  though  it.be  only  by  special  demurrer.  This 
would  make  two  issues  on  the  same  plea,  one  of  law  and 
one  of  fact.  The  remedy  then  is  to  demur  to  the  whole  as 
double. 

3.  Matter  immaterial  cannot  operate  to  make  a  plead- 
ing double. 

As  it  may  be  safely  passed  by  in  silence,  it  will  not 
prevent  the  issue  from  being  single,  which  is  the  sole 
object  of  the  rule  forbidding  duplicity. 

A.  No  matter  will  make  a  pleading  double,  that  is 
pleaded  only  as  necessary  inducement  to  another  allega- 
tion. 


THE    PRINCIPLES    OF    PLEADING.  185 

Stephen  lays  down  this  rule,  and  illustrates  it  by  a  case, 
which  he  states  inaccurately,  and  which  does  not  support 
it.  It  is  the  case  of  a  widow,  who  sues  on  a  contract 
released  by  a  husband,  whom  she  had  mai'ried  since  the 
contract.  The  coverture  is  plead  as  necessary  inducement 
to  the  release,  and  this  was  held  good,  though,  as  Stephen 
says,  the  coverture  alone  of  the  plaintiff  was  a  good 
defence.  So  it  would  have-been,  in  abatement,  if  the 
husband  had  been  living,  but  he  was  dead.  The  cover- 
ture therefore  was  no  defence,  as  the  woman  had  not  lost 
her  rights  by  being  married  in  the  mean  time.  If  the  hus- 
band had  been  living,  then,  if  a  plea  to  that  effect  had  been 
held  good,  the  husband's  right  would  have  been  barred 
by  a  judgment  against  the  wife,  while  covert,  and  while 
the  fact  of  the  coverture  appeared  on  the  record.  Even 
an  audita  querela  suggesting  the  coverture  could  do 
no  good,  because  the  fact  suggested  is  already  in  the 
record. 

I  have  stated  the  rule  as  I  find  it  laid  down,  by  an 
author  whose  accuracy  I  am  afraid  to  question.  I  dare 
say  it  is  right,  though  I  have  tried  in  vain  to  imagine  a 
case  in  which  it  would  apply. 

5.  No  matters  however  multifarious  will  make  a  plead- 
ing double,  that  together  constitute  but  one  connected  prop- 
osition or  entire  point. 

The  reason  of  this  is  obvious,  when  applied  to  a  chain 
of  circumstances,  which  would  be  incomplete  if  any  one 
link  were  omitted.  Such  omission  would  make  the  plea 
bad  in  substance.  To  condemn  it,  as  bad  in  form,  because 
this  necessary  matter  is  inserted,  would  be  absurd.  Neither 
the  rule  nor  the  reason  is  so  clear,  when  we  come  to  speak 
of  traverses  to  such  pleas  as  have  just  been  spoken  of. 
Can  the  adverse  party  traverse  the  whole  collectively,  or 
must  he  single  out  some  one  link  in  the  chain,  and  confine 
himself  to  that  ?  This  is  a  question  to  which  Mr.  Stephen 
16* 


186  THE    PRINCIPLES    OF    PLEADING. 

furnishes  the  most  definite  answer  I  have  met  with,  though 
even  that  is  not  quite  clear. 

If  the  chain  of  facts  plead  does  not  contain  any 
allegation  of  title,  interest,  commandment,  authority,  or 
matter  of  record,  then  the  replication  may  traverse  all  the 
facts,  and  require  of  defendant  to  support  his  whole  plea 
by  proof.  But  if,  among  the  matters  which  make  up  the 
plea,  there  be  any  one  such  allegation  of  title,  interest,  &c, 
then  the  traverse  must  be  confined  to  that,  admitting  all 
the  rest,  (or  merely  protesting  against  the  rest,)  or  it  must 
be  taken  on  the  other  facts  alone,  admitting  (or  protesting) 
such  matter  of  title,  interest,  commandment,  authority,  or 
record.  For  the  proper  forms,  I  refer  to  other  writers. 
To  explain  the  principles  of  pleading,  and  show  their 
application,  is  all  my  aim.* 

*  I  have  said  that  Stephen's  account  of  this  matter  is  not  quite  clear. 
His  words  would  seem  to  embrace  all  replications,  but  his  instances  are 
all  taken  from  replications  in  form  tie  injuria,  which  are  proper  in  very 
few  cases.  These,  I  conceive,  are  the  only  cases,  in  which  cumulative 
traverses  are  at  all  allowed,  and  his  rule  restricts  even  these.  In  all 
others,  I  understand  him  1o  mean,  that,  whatever  be  the  number, 
or  nature,  of  the  facts,  which  make  the  chain  of  defence,  the  replication 
must  single  out  some  one,  and  traverse  that.  He  himself  presently  puts 
the  case  of  a  plea  of  accord  and  satisfaction,  which  alleges  &  giving  and 
taking  in  satisfaction.  Here,  he  says,  the  plaintiff  may  traverse  \\\e  giv- 
ing, or  the  receiving  in  satisfaction,  but  not  both  together.  A  stronger 
case  cannot  be  conceived,  for  it  requires  an  effort  of  legal  accumen  to 
discover,  that  these  are  two  distinct  facts.  This  matter  is  much  misun- 
derstood ;  and  I  have  seen  a  plea  of  twenty  distinct  facts  traversed  in 
detail,  each  allegation  being  copied  into  the  replication,  with  the  prefix 
of  the  word  '  not'  to  each.  I  sustained  a»demurrer  for  duplicity,  and  my 
judgment  was  reversed.  Had  the  Judges  who  reversed  it  presided  at 
the  trial,  when  the  case  came  back,  they  would  have  seen  their  error  in 
the  working  of  the  issue  so  made.  This  is  one  consequence  of  having 
an  appellate  court  made  wp  of  Judges  who  never  loitness  a  trial  by  Jury. 

Mr.  Stephen's  Rule,  in  regard  to  those  cases  to  which  it  is  applicable, 
maybe  explained  thus.  The  defendant  having  plead  (for  example)  a 
Title,  and  also  having  set  forth  such  facts,  as  bring  his  case  within  the 
scope  of  the  Title,  the  plaintiff  may  admit  the  title,  and  traverse  these 
facts;  or  he  may  admit  the  facts,  and  traverse  the  title;  but  he  cannot 
traverse  all  together. 


THE    TRINCirLES    OF    PLEADING.  187 

6.  A  Protestation  will  not  make  a  pleading  double. 

For  this  plain  reason.  It  is  not  noticed  by  the  adver- 
sary, and  does  not  affect  the  issue.  Duplicity  in  the  issue, 
is  the  great  evil  to  be  guarded  against.  The  reader  can 
easily  see  the  confusion  it  would  produce  ;  and  this,  per- 
haps, may  enable  him  to  understand,  why  so  much  confu- 
sion is  apt  to  attend  trials  on  general  issues.  These  are 
almost  all  in  their  nature  double  pleas  ;  and  it  is  on  these 
that  nearly  all  the  hung  juries,  and  bills  of  exception,  and 
special  verdicts  arise.  These  last  are  clumsy  attempts  to 
supply  the  certainty  of  the  facts,  which  special  pleading 
would  have  quietly  established,  and  this  is  what  all  the 
enemies  of  special  pleading  propose  to  render  universal. 
It  requires  infinitely  more  skill  to  draw  a  bill  of  exceptions, 
or  a  special  verdict,  than  a  plea.  But  the  lawyer  pleads 
in  his  office,  at  his  leisure,  and  surrounded  by  his  books. 
If  he  makes  a  blunder,  he  has  leave  to  amend.  He  draws 
up  his  bill  of  exceptions  or  special  verdict  at  the  bar,  in 
the  presence  of  a  hungry  Jury,  an  impatient  court,  a  noisy 
audience,  and  an  harassing  adversary,  and,  if  he  makes  a 
mistake,  it  is  fatal  and  irrevocable. 

RULE   II. 

This,  as  laid  down  by  Stephen,  is,  that  it  is  not  alloivable  to  plead  and 
demur  to  the  same  matter. 

This  is  not  law  in  Virginia.  The  antiquated  idea,  that 
the  proceedings  in  an  action  are  a  quest  after  truth,  is 
exploded.  The  old  notion,  that  a  man  should  not  blow 
hot  and  cold  in  the  same  breath,  is  discaixled  as  only  wor- 
thy of  the  birds  and  beasts  and  Satyrs,  of  whose  talk  we 
read  in  iEsop.  Accordingly,  the  defendant  may,  uno  flatu, 
confess  and  deny  the  same  fact,  and  the  confession  and 
denial  are  both  put  into  the  record,  which  was  contrived 
by  the  unlettered  wisdom  of  our  ancestors,  to  contain  a 


188  THE    PRINCIPLES    OF    PLEADING. 

precise  and  consistent  statement  of  the  facts  of  the  case, 
as  the  minor  premise  of  a  syllogism,  of  which  the  Judg- 
ment is  the  conclusion.  So  contrived,  the  Judgment,  in  its 
naked  form,  testified  to  all  the  community,  and  to  all  pos- 
terity, that,  '  such  being  the  facts,  such  is  the  Law.'  What 
it  testifies  now,  who  can  tell  ?  Truly  the  march  of  mind, 
in  these  enlightened  days,  has  made  great  progress. 

I  have  already  said  of  this  monstrous  absurdity  as  much 
as  I  know  how  to  say :  —  more  than  it  deserves.  But  the 
Guillotine  made  Marat  an  important  character  in  history. 
Let  us  at  least  be  candid,  and  admit  that  perhaps  the  Huns 
and  Alans,  when  desecrating  and  destroying  the  monu- 
ments of  Grecian  art,  thought  as  favorably  of  their  work, 
as  our  lawgivers  of  their  labors,  in  tearing  down  the  pillars 
of  the  temple  of  Justice. 

SECTION  V. 

OF   RULES    WHICH    TEND    TO    PREVENT    OBSCURITY    AND 
CONFUSION   IN   PLEADING. 

On  looking  over  the  remaining  rules  of  pleading,  I  am 
pleased  to  find,  that  there  are  many  of  them,  the  reason  of 
which  may  be  at  once  displayed,  by  reference  to  preced- 
ing passages  of  this  little  work.  Where  this  can  be  done, 
I  shall  content  myself  with  such  reference. 

RULE  I. 
Pleadings  must  not  be  insensible,  or  repugnant. 

I  hardly  need  remind  the  reader,  that  the  end  of  the 
system  of  pleading  is  to  get  into  the  record  an  intelligible, 
precise,  and  consistent  statement  of  the  ascertained  facts 
of  the  case.  In  such  a  statement,  nothing  unmeaning,  or 
self-contradictory,  should  have  a  place. 


THE    PRINCIPLES    OF    PLEADING.  189 

RULE   II. 

Pleadings  must  not  be  ambiguous,  or  dotibtful  in  meaning;  and,  when 
two  different  meanings  present  themselves,  that  constmction  shall  be 
adopted,  which  is  most  unfavorable  to  the  party  pleading. 

The  first  part  of  this  rule  rests  on  the  same  reason  with 
the  foregoing.  The  latter  part  enforces  the  other,  by 
making  it  dangerous  to  practice  any  studied  ambiguity. 
He  who  does  so,  proposing  to  insist  on  the  meaning  best 
suited  to  his  own  purpose,  is  caught  in  his  own  trap.  The 
meaning  that  suits  him  least  is  fixed  on  his  words.  It  is 
an  instance  of  the  maxim,  '■verba  fortius  accipiuntur 
contra  proferentem? 

RULE   III. 

Pleadings  must  not  be  argumentative. 

This  is  an  established,  but,  as  I  think,  an  ill  chosen 
form  of  words,  used  to  express  an  idea,  with  which  I  hope 
the  reader  is  already  familiar.  If  he  will  turn  back  to 
what  is  said  of  special  traverses,  he  will  see  the  meaning 
of  this  rule,  and  its  reason.  It  is  not  because  a  plea  con- 
tains an  argument,  that  it  is  condemned  as  argumentative. 
This  is  but  a  blemish.  But  it  is,  that  it  is,  in  substance,  a 
traverse,  and  that  the  matter  plead  requires  the  addition 
of  an  argument  to  make  it  a  sufficient  denial.  Every 
affirmative  plea,  that  amounts  to  the  general  issue,  is  argu- 
mentative, for  it  states  a  fact  of  no  importance  in  itself,  but 
as  it  affords  the  foundation  of  an  argument  to  prove  the 
declaration  to  be  false.  Thus  the  plea  of  a  widow  to  debt 
on  bond  executed  while  she  was  married,  that  she  was  at 
the  time  a  feme  covert,  amounts  to  the  general  issue.  If 
so,  the  supposed  bond  is  not  her  deed.  But  it  requires  an 
argument  to  arrive  at  this  conclusion.  Had  she  deduced 
it  herself,  and  concluded,  '  and  so  it  is  not  her  deed,  and 
of  this  she  puts  herself  on  the  country,'  the  plea  would  be 


190  THE    PRINCIPLES    OF    PLEADING. 

good.  She  thus  tenders  an  issue  which  will  decide  the 
case  either  way,  and  though  the  history  of  her  coverture 
is  superfluous,  and  a  blemish,  yet,  as  utile  per  inutile  non 
vitiatur,  the  court  disregards  it,  and  the  issue  is  joined, 
tried,  and  decided,  just  as  if  it  were  not  there. 

I  have  chosen  to  put  this  case,  because  it  has  given  rise, 
as  I  conceive,  to  a  mistake  calculated  to  mystify  the  whole 
science.     The  supposed  plea  would  run  thus : 

'  The  said  Jane  says,  [that  the  plaintiff  his  action  afore- 
said ought  not  to  have  and  maintain,  because  she  says, 
that,  on  the  day  of  the  date  of  the  said  supposed  writing 
obligatory,  she  was  a  feme  covert  &c.  &c.  and  so  the  said 
Jane  says]  that  the  supposed  writing  obligatory  in  the 
declaration  mentioned  is  not  her  deed,  and  of  this  she  puts 
herself  on  the  country.' 

Now  this  is  a  good  plea,  not  in  virtue  of  what  is  contained 
between  brackets,  but  in  spite  of  it.  It  is  good,  because, 
setting  aside  all  that,  which  does  neither  harm  nor  good, 
it  contains  exactly  the  very  words  of  a  regular  plea  of  non 
est  factum,  as  will  be  seen  by  reading  it  without  that 
interpolation.  Yet  this  is  perhaps  just  such  a  plea,  as  a 
novice  might  suppose  to  come  under  the  description  of 
argumentative. 

But  suppose  instead  of  concluding  with  a  traverse,  thus 
'  and  so  the  said  Jane  says  &c.'  it  had  gone  on  to  say, '  and 
this  she  is  ready  to  verify,  wherefore  she  prays  Judgment ' 
&c.  &c.  This  would  have  made  it  argumentative.  And 
the  reason  why  it  is  bad  will  be  found  in  the  passage 
before  referred  to.  If  issue  be  taken  upon  it,  and  the 
verdict  be  for  the  defendant,  she  shall  have  judgment. 
But  if  her  plea  be  negatived  by  the  finding,  still  the 
plaintiff  can  not  have  judgment,  because  the  main  fact 
(that  the  bond  is  her  deed)  is  neither  confessed  nor  found. 
The  other  conclusion  pute  the  execution  in  issue,  and  makes 
the  domestic  history  of  the  lady  but  surplusage,  which 
never  vitiates. 


THE    PRINCIPLES    OF    PLEADING.  191 

The  above  rule  then  is  but  an  obscure  form  of  expressing, 
what  is  otherwise  much  more  clearly  laid  down  ;  and  all  I 
have  said  is  to  prevent  mischief  from  a  misapprehension 
and  misapplication  of  it.  As  to  the  particular  case  I  have 
supposed,  if  it  be  asked,  why  we  find,  in  the  best  books  on 
pleading,  a  form  disfigured  by  such  a  blemish,  I  answer, 
that  I  suppose  it  to  have  been  introduced  to  relieve  the 
scruples  of  ladies  (notoriously  more  distinguished  by 
tenderness  of  conscience,  than  by  logical  acumen)  who 
might  be  unwilling  to  put  in,  on  oath,  a  simple  plea  of  non 
est  factum,  to  a  bond  actually  and  formally  sealed  and 
delivered.  It  is  therefore  but  explanatory,  and  disregarded 
by  the  plaintiff,  who  must  still  prove  the  execution  of  the 
bond.  So,  I  conceive,  if  a  defendant,  wishing  to  contend 
that  infancy  makes  a  bond  absolutely  void,  but  unwilling 
to  plead  the  naked  non  est  factum  on  oath,  should  seek  to 
salve  his  conscience  in  the  same  way,  the  plea  might  be 
good,  and  he  might  prevail,  if  the  plaintiff  should  fail  to 
prove  the  execution  of  the  bond.  But  the  difference 
would  be,  that,  the  execution  being  2^'ovcd,  the  proof  of 
infancy  would  not  support  the  plea,  though  the  proof  of 
coverture  would. 

A  common  example  of  this  rule  is,  that  two  affirmatives, 
or  two  negatives  cannot  make  an  issue.  It  is  equally  true, 
that,  if  inconsistent  with  each  other,  no  good  issue  can  be 
taken  on  the  last  of  them.  The  case  already  put,  of  a 
wager  on  the  color  of  a  horse,  shows  the  reason  of  this,  as 
plainly  as  I  can  exhibit  it. 

RULE  IV. 

Pleadings  must  not  be  in  the  alternative. 

Admission,  tacit  or  express,  only  establishes  what  has 
been  affirmed.  Such  pleadings  affirm  nothing.  The 
adversary  then  can  lose  nothing  by  silence  or  demurrer, 
and  so  his  demurrer  must  be  sustained. 


192  THE    PRINCIPLES    OF    PLEADING. 

RULE  V. 

Pleadings  must  not  be  by  way  of  recital,  but  must  be  positive  in  tlieir 
farm. 

This  rule  took  its  rise  when  the  pleadings  were  in  Latin, 
and  was  expressed  by  saying  that  material  facts  must  not 
be  laid  with  a  quod  cum.  The  meaning  was,  that  they 
must  be  stated  in  the  indicative  mood,  which  affirms,  and 
not  in  the  subjunctive,  which  as  I  have  already  said,  only 
supposes,  but  affirms  nothing.  To  talk  about  a  fact  is  not 
to  affirm  it;  and  without  an  affirmative,  there  can  be  no  issue- 
Yet  our  Statute  of  Jeofails  says,  that,  after  verdict  or 
default,  the  quod  cum  shall  not  vitiate ;  and  that  the 
plaintiff  shall  have  judgment,  though  the  Jury  found 
nothing,  and  the  defendant,  by  his  silence,  admitted  nothing, 
because  nothing  had  been  affirmed.  Perhaps  the  Statute 
may  be  vindicated  by  understanding,  that  the  legislature 
mean  to  declare,  that  the  plaintiff  shall  be  taken  in  law  to 
aver  whatever  he  recites.  It  would  not  be  so  in  English. 
But  Law  language  is  what  the  law  makes  it. 

RULE  VI. 

Things  must  be  pleaded  according  to  their  legal  effect  or  operation. 

This  is  true  of  all  things.  A  feoffment  by  one  joint 
tenant  to  another  must  be  pleaded  as  a  release  :  By  lessee  to 
his  lessor  as  a  surrender  :  A  covenant  to  stand  seized  for 
valuable  consideration,  as  a  deed  of  Bargain  and  sale.  So 
the  facts,  from  which  the  law  will  imply  a  promise,  must 
be  pleaded  as  a  promise,  and  they  will  prove  a  promise, 
though  the  defendant  may  he  shown  to  have  uniformly 
and  flatly  refused.  So  a  bond  to  pay  money  is,  in  England, 
uniformly  plead  as  'an  acknowledgement  that  the  defendant 
i>  held  ami  firmly  hound.'  A  better  formula,  as  I  conceive, 
i>  to  charge  that  'he  acknowledged  himself  to  be  indehted.' 


THE    PRINCIPLES    OF    PLEADING.  193 

On  this  subject  of  bonds  some  thoughts  have  occurred 
to  me,  which,  as  the  law  is  now  settled,  are  of  no  practical 
value  ;  and  yet  they  may  help  to  the  understanding  of  the 
whole  subject,  and  to  elucidate  some  matters,  which  have 
not  been  made  as  plain  as  they  might  be. 

Notwithstanding  the  loose  phraseology  of  Blackstone 
and  other  writers,  it  is  not  true  that  every  sealed  instru- 
ment implies  a  consideration.  A  deed  of  Bargain  and 
Sale,  in  which  no  valuable  consideration  is  expressed,  is 
of  no  effect  whatever. 

But  the  words,  '  I  acknowledge  myself  to  be  indebted,' 
do  imply  a  consideration ;  for  there  can  be  no  indebtedness 
by  contract  without  consideration.  The  truth  of  this 
acknowledgment,  under  seal,  fhe  obligor  is  estopped  to 
deny ;  and  as  nothing  need  be  averred,  which  cannot  be 
traversed,  the  declaration  says  nothing  of  the  consideration. 
So  a  promise  to  pay  implies  indebtedness,  and,  of  course, 
consideration.  This  is  the  legal  effect  of  such  a  promise. 
Hence  the  bond  is  plead  as  by  ivay  of  estoppel.  It  is 
only  recited,  for  the  gist  of  the  action  is  said  to  be  the 
breach.  The  bond  is  set  forth  in  the  same  form,  and 
occupies  the  same  place  in  debt,  as  the  possession  of  the 
property,  with  the  loss  and  finding,  in  detinue.  The 
point  of  the  action  is  the  refusal  in  the  one  case,  the 
detainer  in  the  other.  The  actions  are  of  the  same  nature, 
and  brought  to  recover  what  already  belongs  to  the  plain- 
tiff. It  is  the  same  thing  whether  the  defendant  has 
the  plaintiff's  money  in  his  pocket,  or  his  horse  in  his 
stable. 

The  action  does  not  demand,  that  the  breach  of  a 
promise  be  compensated  out  of  the  defendant's  property. 
It  seeks  to  recover  what  already  belongs  to  the  plaintiff; 
the  horse,  if  to  be  had,  and  if  not,  his  value  ;  the  specific 
money,  or  its  equivalent  in  other  coins.  Does  not  the 
very  form  of  the  action  establish  the  truth  of  these  ideas  ? 
17 


194  THE    PRINCIPLES    OF    PLEADING. 

Even  at  this  day,  I  should  like  to  see  a  declaration  on  a 
promise  under  seal,  to  give.  Covenant  might  lie  upon  it, 
but  would  debt  ?  And  if  Covenant,  what  damages  would 
the  jury  give?  I  would  be  almost  willing  to  execute  a 
bond  in  this  form.  '  Whereas  I  and  A.  B.  are  both 
desirous  to  know,  whether  an  action  of  debt  can  be  main- 
tained on  such  a  writing  as  this,  I  have  this  day  placed 
in  the  hands  of  A.  B.  a  sum  of  money  admitted  and 
accepted  by  him,  as  more  than  sufficient  to  defray  all  the 
costs,  which  may  be  incident  to  a  suit  brought  to  try  the 
question,  and  now,  in  consideration  of  this  curiosity,  and 
for  the  purpose  of  trying  the  said  question,  and  for  no 
other  consideration  whatever,  I  do  hereby  promise  to  give 
the  said  A.  B.  $100,  on  of  before  the  first  of  June  next. 
Witness  my  hand  and  seal,'  &c.  &c. 

Suppose  this  instrument  sued  on  in  debt  as  a  promise  to 
give.  Would  such  promise  be  actionable?  Suppose  it 
described  as  an  acknowledgment  of  indebtedness :  if  set 
forth  on  oyer,  would  not  a  demurrer  for  variance  be 
fatal  ?  If  sued  on  as  covenant,  would  a  Jury  give  any 
damage  ?  Perhaps  the  English  formula, '  that  he  acknowl- 
edged himself  to  be  held  and  firmly  bound,'  might  cover 
the  case.  But  I  beg  pardon  for  dwelling  on  a  case  that 
can  never  arise.  Yet  I  will  venture  to  say,  in  conclusion, 
that  the  prevailing  idea  in  Virginia,  that  the  declaration 
must  pursue  the  terms  of  the  bond,  is  at  variance  with 
this  rule.  The  bond  is  sued  on  as  an  acknowledgment, 
and  must  be  so  stated.  The  ingenuity  of  ignorance  in 
contriving  blunders  for  enlightened  men  is  notorious  ;  and 
I  once  witnessed  a  case  in  which  a  lawyer,  who  had  grown 
old  in  successful  practice  in  Virginia,  was  baffled  by 
demurrer  after  demurrer,  in  endeavoring  to  adapt  his 
declaration  to  a  sealed  instrument,  that  none  but  an  illit- 
erate clown  could  have  had  the  ingenuity  to  write.  I 
remember,  that  the  paper  would  have  well  supported  the 


THE    PRINCIPLES    OF    PLEADING.  195 

allegation,  that  the  defendant  acknowledged  himself  to  be 
indebted ;  but  the  lawyer  had  not  so  learned  the  law  as  to 
vise  that  form. 

RULE  VII. 

Pleadings  should  observe  the  known  and  ancient  forms  of  expression 
as  contained  in  approved  precedents. 

This  is  a  safe  good  rule  which  the  pleader  will  do  well 
to  observe.  While  he  observes  it  he  runs  no  risk,  and  it 
is  much  easier  to  copy  an  approved  form,  than  to  devise 
a  new  one.  Moreover,  after  a  long  course  of  adjudica- 
tions has  settled  the  technical  value  of  particular  words 
and  phrases,  suited  to  all  sorts  of  cases,  the  court  has  a 
right  to  protect  itself  from  the  annoyance  of  having  to 
decide  on  the  precise  meaning  of  other  words.  Thus  if, 
in  trespass,  the  defendant  say,  '  that  he  is  not  culpable, 
&c.'  and  on  demurrer  for  want  of  form,  should  propose  to 
prove,  that  the  word  '  culpable '  is  precisely  equivalent  to 
'  guilty,'  the  court  would  very  properly  rebuke  his  pedan- 
try, by  refusing  to  decide  that  matter,  or  to  hear  his 
argument  on  that  point.  He  might  be  told,  that,  by  his 
own  showing,  the  word  '  guilty '  would  have  suited  his 
purpose,  and  he  would  be  required  to  amend,  and  use  it. 

RULE  VIII. 

Pleadings  should  have  their  proper  formal  commencements    and 
conclusions. 

The  importance  of  these,  and  the  reason  of  the  rule, 
must  be  manifest  from  what  has  been  said  in  a  former 
part  of  this  essay.  What  is  in  each  case,  the  proper  con- 
clusion, may  be  collected  from  the  nature  of  the  case. 
The  form  is,  in  every  instance,  exceedingly  simple,  and 
will  be  found  in  every  book  of  forms.  A  few  additional 
words  of  explanation  may  not  be  amiss  here. 


196  THE   PRINCIPLES    OF   PLEADING. 

It  will  be  remembered,  that  I  have  expressed  the  opin- 
ion, that  the  commencement  is  superfluous,  and  might 
be  dispensed  with.  But,  as  it  does  no  harm,  a  respect 
for  old  forms  would  incline  me  to  retain  it,  even  if  I  had 
the  power  to  abolish  it.  But,  as  the  law  actually  stands,  it 
is  necessary,  for  form  sake,  if  nothing  else. 

But  the  conclusion,  we  have  seen,  is  a  prayer  of  such 
judgment,  as  the  fact  plead  will,  if  established,  warrant,  as 
the  true  conclusion  of  law  therefrom.  Such  prayer  will  be 
right ;  any  other  wrong.  Now  every  affirmative  pleading 
in  bar  should  state  matter  on  the  part  of  the  defendant, 
proper  to  bar  the  action,  and  should  conclude  with  a 
prayer  of  judgment,  'if  the  plaintiff  ought  to  have  and 
maintain  his  action.'  This,  therefore,  is  the  proper  con- 
clusion to  all  pleas,  rejoinders,  or  rebutters,  in  bar.  Affir- 
mative allegations,  in  reply  to  any  of  these,  on  the  part  of 
the  plaintiff,  state  matter,  the  effect  of  which  should  be 
that  the  action  ought  not  to  be  barred,  and  therefore  the 
replication,  surrejoinder,  and  surrebutter,  conclude  with  a 
prayer  of  judgment,  'whether  the  action  ought  to  be 
barred.' 

These  rules  decide  the  conclusion  of  all  affirmative 
pleadings,  which  propose  to  bring  the  case  to  a  final  deci- 
sion, on  the  very  right  and  justice  of  it.  But  negative 
pleadings,  of  the  same  character,  alleging  no  premise, 
would  seem  to  require  no  conclusion.  It  might  be  sup- 
posed to  be  enough,  inasmuch  as  such  pleading  denies  the 
premise,  on  which  the  adversary  has  claimed  judgment,  to 
leave  the  court  (which  has  been  called  on  to  give  judg- 
ment in  his  favor,  if  the  fact  alleged  be  established,)  to 
give  the  opposite  judgment  if  he  fails  to  establish  it.  The 
form  of  the  general  issue  is  in  accordance  with  this  idea, 
and  so  it  has  neither  commencement  nor  conclusion.  The 
same  reasoning  would  seem  to  apply  to  all  traverses ;  but 
it  only  goes  the  length  of  rendering  the  commencement 


THE    PRINCIPLES    OF    PLEADING.  197 

superfluous.  The  result  of  all  is  then,  that,  to  general 
issues,  there  is  neither  commencement  nor  conclusion.  To 
all  other  traverses  there  is  a  conclusion,  without  commence- 
ment. All  affirmative  pleadings  to  the  merits  of  the  action, 
have  both  commencement  and  conclusion. 

In  every  case  it  will  be  seen,  that,  where  there  is  a 
commencement,  the  conclusion  does  but  echo  it.  By  the 
first,  the  defendant  says,  '  that  the  plaintiff  ought  not  to 
have  and  maintain,'  &c.  By  the  second,  he  '  prays  judg- 
ment if  he  ought,'  &c.  By  the  first,  the  plaintiff  says,  '  he 
ought  not  to  be  barred,'  &c  By  the  second,  he  'prays 
judgment  if  he  ought  to  be  barred,'  &c. 

Of  the  conclusion  to  pleas  in  abatement,  I  shall  speak 
when  I  come  to  treat  of  those  pleas. 

RULE  IX. 
A  pleading  which  is  bad  in  part,  is  bad  altogether. 

The  meaning  of  this  is,  that,  if  the  law  will  not  deduce 
from  the  matter  of  the  plea,  the  whole  conclusion,  with 
which  the  plea  ends,  the  plea  is  bad.  Thus,  if  two  defen- 
dants join  in  a  plea  of  confession  and  avoidance,  and  plead 
matter,  which  is  a  good  excuse  for  one,  but  not  for  the 
other,  and  conclude  with  a  prayer,  whether  the  plaintiff 
shall  maintain  his  action  against  either,  this  is  bad.  The 
conclusion  deduced  by  the  plea  from  the  fact  plead,  (as 
expressed  in  the  conclusion  of  the  plea,)  is  not  the  conclu- 
sion which  the  law  deduces  from  that  fact,  and  so  the  plea 
stands  condemned  by  a  rule  and  a  reason  of  universal 
application.  So  in  debt,  if  the  defendant  pleads  payment 
of  part,  and  concludes  with  a  prayer  of  judgment  in  bar  of 
the  whole  action,  the  plea  is  bad.  The  Law  deduces  no 
such  conclusion.  Yet,  in  both  cases,  the  matter  of  the 
plea  is  good,  as  far  as  it  goes ;  and  the  plea  would  have 
been  good,  if,  instead  of  being  offered  in  bar  of  the  whole 
17* 


198  THE    PRINCIPLES    OF    PLEADING. 

action,  it  had  been  plead,  in  the  first  case,  in  bar  of  the 
action  against  the  one  defendant,  whom  the  fact  alleged 
excused,  and,  in  the  other,  in  bar  of  the  action,  for  so 
much  of  the  debt  as  has  been  paid. 

SECTION  VI. 

OF    RULES    WHICH     TEND     TO    PREVENT     PROLIXITY    IN 
PLEADING. 

RULE  1. 

There  must  be  no  departure  in  ■pleading. 

In  many  cases  the  pleas  of  confession  and  avoidance 
are  so  numerous,  that,  if  a  defendant,  after  having  plead 
one,  and  drawn  a  traverse  or  a  confession  and  avoidance 
from  his  adversary,  should  be  allowed  to  relinquish  that, 
and,  shifting  his  ground,  rest  his  defence  on  a  new  allega- 
tion, there  might  be  no  end  of  the  case.  In  every  case 
therefore,  the  party,  having  all  possible  defences  before 
him,  is  required  to  choose  the  one  on  which  he  will  rely, 
and  to  that  he  is  tied  down.  At  this  day,  he  is  allowed 
(by  virtue  of  the  Statute  already  mentioned,)  to  plead 
them  all  at  once ;  but,  in  this  case,  the  candles  are  all 
lighted  together ;  and  though  much  confusion  may  be, 
and  is,  the  consequence,  no  delay  is  produced. 

On  this  principle,  the  rejoinder  is  strictly  compared 
with  the  plea,  and  if  it  be  found,  that  the  party  is  attempt- 
ing to  shift  his  ground  of  defence,  he  is  forced  back  by  a 
demurrer,  and  made  to  maintain  the  ground  first  taken. 
On  this  point,  the  practice  is  strict,  and  the  slightest 
aberration  from  the  direct  line  to  an  issue,  from  the  defence 
first  proposed,  is  rebuked  and  corrected. 

This  strictness  is  palliated  thus.  If  the  party  finds  that 
he  has  mistaken  his  ground  of  defence,  then,   instead  of 


THE   PRINCIPLES    OF   PLEADING.  199 

disfiguring  the  logical  symmetry  of  the  record,  by  inconse- 
quential reasoning,  he  asks,  and  obtains  leave  to  amend  — 
withdraws  his  first  plea,  and  pleads  de  novo.  But  this  he 
can  only  do  by  leave,  to  obtain  which  an  affidavit  is 
commonly  necessary. 

RULE   II. 

Where  a  plea  amounts  to  the  general  issue,  it  should  be  so  pleaded. 

If  it  be  a  plea  of  denial,  the  reason  will  be  found  under 
Sect.  V.  Rule  VII.  If  it  be  affirmative,  then  it  will 
present  a  case,  where  a  verdict  for  the  defendant  will 
authorise  a  judgment  for  him,  but  a  verdict  for  the  plaintiff 
will  not  authorise  a  judgment  for  the  plaintiff.  See  ante 
Sect.  V.  Rule  III. 

But  let  it  be  observed,  that  this  reason  only  applies, 
where,  (the  matter  which  is  plead  specially  and  affirma- 
tively, amounting  to  the  general  issue,)  the  plaintiff 
proposes  to  traverse  it.  But  if  he  replies  by  way  of 
confession  and  avoidance,  no  such  inconvenience  will 
follow ;  as  the  issue  so  made  will  decide  the  case  either 
way.  Hence  the  discretion  of  the  Court  heretofore 
spoken  of,  to  allow  this  cause  of  special  demurrer,  or 
disallow  it,  if  they  see  that,  by  allowing  the  plea  to  stand, 
justice,  economy  and  dispatch  will  be  promoted. 

RULE  III. 
Surplusage  is  to  be  avoided. 

No  plea  is  ever  held  to  be  bad  for  mere  surplusage,  for 
■utile  per  inutile  no?i  vitiatur.  Yet  the  rule  is  of  great 
practical  value,  in  the  effect  of  its  observance  on  the 
pleader  himself.  The  habit  of  pleading,  with  strict  regard 
to  it,  will  give  him  a  clearer  insight  into  the  Law  both  of 
remedy  and  right.     It  will  lead  too  to  the  establishment  of 


200  THE    PRINCIPLES    OF    PLEADING. 

another  habit :  that  of  well  considering  the  matter  of  his 
plea.  In  taking  care  to  lop  off  non-essentials,  he  will  be 
careful  to  preserve  essentials,  and  be  better  able  to  judge 
of  the  sufficiency  of  a  proposed  defence. 

SECTION  VII. 

OF    CERTAIN   MISCELLANEOUS    RULES. 
RULE  I. 

The  declaration  should  commence  with  a  recited  of  the  original  ivrit. 

The  writ  here  spoken  of  is  that  used  in  England,  not 
only  to  bring  in  the  defendant,  but  to  authorise  the  court 
to  try  the  case.  We  have  nothing  corresponding  with  it, 
and  of  course  the  rule  can  have  no  application  with  us. 

RULE  II. 

The  declaration  must  be  conformable  to  the  original  writ. 

If  it  were  not  so  in  England  then  it  would  present  a 
case  which  the  court  had  no  authority  to  try.  This  reason 
therefore  does  not  apply  with  us :  nor  can  the  rule  be 
applicable  where  the  defendant  appears  and  pleads,  as  he 
may  do  without  writ,  unless  his  plea  is  founded  on  this 
very  defect.  By  any  other  plea  he  waives  the  objection. 
If  he  does  not  appear,  and  there  be  found  in  the  office  a 
writ  in  trespass  and  a  declaration  in  debt,  between  the 
same  parties,  I  should  say,  that  there  was  a  writ  without  a 
declaration,  and  a  declaration  without  a  writ;  that  Judg- 
ment of  non  pros  should  be  entered  on  the  writ,  and  that 
any  judgment  on  the  declaration  would  be  irregular  and 
null.  There  is  something  indeed  in  our  amazing  Statute 
of  Jeofails,  that  seems  at  variance  with  this ;  but,  as  the 
language  of  the  passage  shows  that  the  Legislative  did  not 


THE    PRINCIPLES    OP    PLEADING.  201 

understand  its  own  words,  it  would  be  absurd  to  attribute 
to  them  a  meaning  at  variance  with  all  received  principles 
of  Law,  Justice,  and  common  sense. 

RULE  III. 

The  Declaration  sJwuld,  in  conclusion,  lay  damages,  and  allege  produc- 
tion of  Suit. 

This  rule  is  arbitrary  and  useless.  The  first  branch  of 
it  sometimes  does  harm :  never  good.  It  has  no  effect,  but 
to  tie  down  the  plaintiff  to  the  damages  laid,  though  the 
Jury  should  find  a  larger  amount.  I  have  seen  a  case  of 
this  sort.  The  other  part  of  the  rule  relates  to  a  form, 
which,  as  now  understood,  means  nothing,  and,  in  the  prim- 
itive sense  of  the  word,  alleges  what  is  not  true. 

RULE  IV. 

Pleas  must  be  pleaded  in  due  order. 

It  is  here  that  I  propose  to  speak  of  pleas  in  abatement. 
For  reasons  which  it  is  needless  to  explain,  they  are  always 
first  plead,  in  order  of  time.  Hence,  they  are  always 
treated  of  first.  But  there  is  no  need  to  do  this  ;  and,  on 
the  logical  principle  of  postponing  every  topic,  until  those 
which  may  help  to  explain  it  have  been  first  expounded. 
I  have  said  nothing  of  pleas  in  abatement,  until  I  had  first 
labored  to  give  a  just  and  clear  idea  of  pleas  generally, 
beginning  with  pleas  in  bar,  as  most  intelligible,  and  least 
technical. 

The  answer  of  the  defendant  to  the  plaintiff's  declara- 
tion, need  not  always  be  such  as  I  have  already  spoken  of. 
It  may  be  neither  a  denial,  or  a  simple  confession  of  the 
matter  alleged,  nor  yet  a  confession,  coupled  with  such 
matter  as  shows  that  the  plaintiff  has  no  right  of  action. 
It  may  be  that  he  has  such  a  right,  and  yet  it  may  be  that 


202  THE   PRINCIPLES    OF   PLEADING. 

he  is  seeking  to  enforce  it  by  the  authority  of  a  court  that 
has  no  jurisdiction  of  the  case ;  or,  that  the  plaintiff  labors 
under  some  disability  which  disqualifies  him  to  maintain 
any  action  however  well  founded ;  or,  that  the  defendant 
is  so  circumstanced  as  not  to  be  liable  to  be  sued,  however 
just  the  cause  of  action  may  be.  Other  objections  may  be 
made  which  may  be  sufficient  to  arrest  the  proceeding,  but 
not  to  decide  the  right.  These,  as  has  been  said,  are 
objections  which  should  be  taken  in  the  first  instance ;  so 
that  if,  instead  of  urging  them,  the  defendant  pleads  in 
bar,  he  is  understood  to  waive  all  such  objections. 

Such  differences  too,  are  to  be  brought  forward  in  a 
certain  order  among  themselves ;  insomuch  that  to  plead 
any  one  of  them  is  to  waive  any  other,  which,  if  plead  at 
all,  ought  to  have  been  plead  before  it.  This  established 
order  is  not  arbitrary,  but  founded  on  reasons  at  once  just 
and  ingenious.  Thus  to  plead  any  imaginable  plea,  but 
one  to  the  jurisdiction,  is  to  demand  the  judgment  of  the 
Court  on  that  plea,  which  is  a  renunciation  of  the  party's 
right  to  deny  the  jurisdiction  he  has  thus  acknowledged. 
The  plea  to  the  jurisdiction  is  therefore  first  in  order.  So 
any  plea  but  that,  which  does  not  deny  the  ability  of  the 
plaintiff  to  sue,  is  said  to  admit  it.  Any,  but  the  fore- 
going, which  does  not  deny  the  liability  of  the  defendant 
to  be  sued,  admits  such  liability.  Moreover,  although  the 
court  have  jurisdiction,  and  the  plaintiff  be  of  ability  to 
sue,  and  the  defendant  be  liable  to  be  sued,  there  may  be 
a  defect  in  the  writ  itself;  or  there  may  be  such  a  variance 
between  the  writ  and  declaration,  that  the  former  will  not  sup- 
port the  latter.  Lastly,  though  none  of  these  objections  may 
apply,  there  may  be  some  matter,  which,  without  destroy- 
ing the  cause  of  action,  shows  that  the  action  ought  not  to 
be  carried  on  in  its  present  form. 

These  different  sorts  of  pleas  are  classified  under  the 
following  heads,  in  the  order  in  which  they  must  be  plead : 


THE    PRINCIPLES    OF    PLEADING.  203 

1.  To  the  Jurisdiction.  2.  To  the  disability  of  the 
Plaintiff.  3.  To  the  disability  of  the  defendant.  4.  To 
the  declaration.  5.  To  the  writ.  6.  To  the  action  of  the 
writ. 

Examples  will  show  the  meaning  of  all  these.  1.  That 
another  court  has  exclusive  jurisdiction.  2.  That  the 
plaintiff  is  a  feme  covert.  3.  That  the  defendant  is  a 
feme  covert.  4.  That  the  declaration  varies  from  the 
writ.  5.  That  the  writ  is  defective  in  point  of  form. 
6.  That  the  promise  on  which  the  defendant  is  sued  is  a 
promise  made  jointly  with  another,  who  is  not  joined  in 
the  action.* 

In  these  pleas,  as  in  all  others,  the  conclusion  should  be 
a  prayer  of  such  judgment,  as  the  fact  alleged  will 
warrant.  Hence,  in  the  different  cases  above  supposed, 
the  conclusions  will  be,  to  the  first  a  prayer  of  Judgment, 
'  if  the  court  will  or  ought  to  have  further  cognizance  '  &c. ; 
to  the  second,  '  whether  the  plaintiff  ought  to  be  answered ; ' 
to  the  third,  '  whether  the  defendant  should  be  required 
to  answer;'  to  the  fourth,  fifth,  and  sixth,  that  the  writ  be 
quashed.  As  to  the  commencement  there  seems  to  be  no 
precise  form  and  no  absolute  necessity  for  any. 

All  these  defences,  taken  as  a  class,  may  be  considered 
captious.  The  law  so  considers  them,  and  therefore  deals 
with  them  most  strictly.  No  fault,  and  scarce  a  blemish, 
is  allowed,  and,  when  demurred  to,  there  is  no  need  to  set 
down  the  special  causes  of  demurrer,  to  enable  the  plaintiff 
to  overrule  the  plea,  for  trivial  defects  of  form. 

It  is  hardly  necessary  to  add,  that,  when  a  plea  in 
abatement  is  demurred  to,  if  the  demurrer  be  decided  in 
the  defendant's  favor,  the  judgment  will  be  precisely  that 
prayed  in  the  conclusion  of  the  plea.  If  the  demurrer  be 
sustained,  then  the  judgment  against  the  defendant  will  be 

*  lam  hardly  sure  that  my  interpretation  of  this  nomenclature  is  right. 
I  think  it  is. 


204  THE    PRINCIPLES    OF    PLEADING. 

that  he  answer  anew  or  over,  or  as  the  old  law  phrase  is  : 
Respondeat  ouster. 

If  the  plea  be  traversed,  and  the  Jury  find  it  to  he,  false, 
the  defendant  does  not  escape  with  this  lenient  judgment ; 
but  the  law,  concluding,  that,  if  he  had  any  defence  on  the 
merits,  he  would  not  have  resorted  to  a  plea  in  abatement, 
which  he  knew  to  be  false,  gives  peremptory  and  final 
judgment  against  him,  as  on  a  verdict  on  a  plea  in  bar. 
When,  by  demurrer,  the  plea  is  admitted  to  be  true,  the 
defendant,  not  being  blamed  for  supposing  it  might  be 
good  in  law,  is,  as  I  have  said,  allowed  to  plead  de  novo. 

RULE   V. 
Pleas  must  be  pleaded  with  defence. 

There  was  once  some  deep  meaning  in  this  rule,  which 
seems  to  have  been  invented,  when  (as  was  the  case  for 
several  reigns)  pedantry  disfigured  and  embarrassed  the 
science.  At  that  day  much  was  said  about  whole  and  half 
defence,  and  a  '  when '  or  '  where '  too  much  or  too  little 
was  fatal.  At  this  day  the  defendant  says  in  all  cases  that 
'he  defends  the  wrong  and  injury  when  &c.  where  &c.,' 
and  these  &c.'s  are  interpreted  to  mean  exactly  as  much 
(whether  whole  or  half,)  as  the  nature  of  the  case  requires. 
Thus  the  form  has  lost  all  its  meaning,  and  only  serves  to 
puzzle  the  learner,  and  to  be  sneered  at  by  the  caviler.  It 
may  not  be  worth  while  to  obliterate  it,  but  no  demurrer 
should  be  sustained  on  account  of  it. 

RULE  VI. 
Pleas  in  abatement  must  give  the  plaintiff  a  better  writ. 

This  means  that  while  the  plea  shows  the  fault,  it  must 
show  the  plaintiff  how  to  correct  it. 


THE    PRINCIPLES    OF    PLEADING.  205 

Thus  a  plea  to  the  jurisdiction  must  show  what  court 
has  jurisdiction. 

A  plea  of  coverture  by  a  woman  must  show  who  is  her 
husband. 

A  plea  of  non  joinder  must  show  who  is  the  co-promiser 
that  ought  to  be  joined,  &c. 

RULE  VII. 
Dilatory  pleas  must  be  pleaded  at  a  preliminary  stage  of  the  suit. 

I  have  already  spoken  of  this.  The  reason  seems  to  be, 
that,  after  tantalizing  the  plaintiff,  and  leading  him  on  to 
prepare  for  trial  by  pleading  in  bar,  the  defendant  shall 
not  be  allowed  to  baffle  him,  by  bringing  forward  matters 
in  abatement,  &c.  which  do  not  touch  the  merits.  So  if 
the  defendant  neglects  to  plead,  until  a  certain  time  be 
past,  he  must  then  plead  in  bar,  or  not  at  all.  The  reason 
of  this  is  the  same  given  above. 

RULE  VIII. 

All  affirmative  pleadings  which  do  not  conclude  to  the  country,  must 
conclude  with  a  verification.* 

To  devise  a  form  of  words,  which  shall  show  distinctly 
which  conclusion  is  right,  in  each  case,  is  not  an  easy  task. 
Let  us  try. 

*  I  am  afraid  there  is  a  want  of  perspicuity  in  this  passage.  The  old 
Rule  embraces  only  affirmative  pleadings.  The  modern  Practice 
extends  it  to  all  such  negative  pleadings  as  do  not  traverse  what  has 
been  alleged  on  the  other  side,  and  so  do  not  make  an  issue.  This 
practice  is  a  modern  innovation.  Such  pleadings  certainly  must  not 
conclude  to  the  country.  But  they  need  not  conclude  with  a  verification. 
iVb  conclusion  is  necessary  ;  but,  as  the  verification  is  but  surplusage,  it 
was  no  cause  of  demurrer,  and  men  blundered  on  it,  from  time  to  time, 
till  it  became  universal. 

But  it  disfigures  the  system,  and  mystifies  the  science.  Men  do  not 
18 


206  THE    PRINCIPLES    OF    PLEADING. 

Every  proposition,  which,  in  substance,  denies  what 
has  been  just  before  alleged  on  the  other  side,  must  con- 
clude to  the  country,  although  it  be  affirmative  in  its  form. 

see  that  the  use  of  the  verification  is  to  indicate  the  party  from  which 
the  proof  must  come,  when  they  find  it  in  the  conclusion  of  a  negative 
pleading,  which  the  pleader  is  never  required  to  prove.  Hence  it  is  to 
be  regretted,  that  the  primitive  purity  of  the  system  has  not  been  pre- 
served. According  to  that  the  pleadings  on  the  act  of  limitations  would 
stand  thus  : 

Plea.    '  Non  assumpsit,  infra  sex  annos.' 

Rep.  '  Assumpsit  infra  sex  annos,  et  de  hoc  petit  quod  inquiratur 
per  patriam.' 

Sim.    '  Defendens  similiter.' 

Now  here  is  nothing  of  the  absurdity  of  offering  to  prove  a  negative. 
Still  it  is  desirable  that  there  should  be  an  offer  of  proof,  the  want  of 
which,  when  proper,  being  cause  of  special  demurrer,  opportunities 
would  be  afforded,  in  the  progress  of  the  case  to  issue,  of  deciding  from 
which  party  the  proof  must  come.  For  any  other  purpose  the  words 
are  unmeaning,  and  should  be  discarded.  Yet,  if  they  are  ever  useful, 
it  is  in  precisely  such  cases,  and  for  such  cases  rules  should  be  provided. 
How  would  these  rules  answer? 

1.  '  A  negative  pleading,  which  does  not  make  an  issue,  shall  neither 
offer  proof,  nor  tender  issue.' 

2.  '  An  affirmative  pleading,  which  makes  an  issue,  shall  offer  proof, 
and  moreover  conclude  with  a  tender  of  issue.' 

Under  these  the  issue  on  the  act  of  Limitations  would  stand  thus  : 

Plea.    '  Non  assumpsit  infra  sex  annos.' 

Rep.  '  Assumpsit  infra  sex  annos,  et  hoc  paratus  est  verificare,  et  de 
hoc  petit  quod  inquiratur  per  patriam.'  — '  Defendens  similiter.' 

This  will  be  still  more  striking  and  satisfactory,  if  we  render  the  '  hoc 
paratus,''  and  '  tie  hoc  petit,  into  their  true  meaning  in  popular  English, 
omitting  the  now  useless  similiter. 

The  '  hoc  -paratus '  is  an  offer  of  proof .  The  '  de  hoc  petit,'  or  'po?iit 
se,'  calls  for  it. 

Let  us  see.  then,  how  the  issue  would  look  in  English. 

Plea.     '  Did  not  promise  within  six  years.' 

Rep.  '  Did  promise  within  six  years,  and  this  the  plaintiff  offers  to 
prove  and  puts  himself  on  the  Country.' 

Rej.    '  Defendant  calls  for  proof.' 

Compare  this  with  the  existing  practice,  supposing  the  pleadings  thus 
rendered  into  popular  English. 

Plea.  '  Did  not  promise  within  six  years,  and  this  the  defendant 
oilers  to  prove.' 

Rep.    '  Did  promise  within  six  years,  and  the  plaintiff  calls  for  proof.' 


THE    PRINCIPLES    OF    PLEADING.  207 

Every  proposition,  which,  in  substance,  does  not  deny 
ivhat  has  been  just  alleged  on  the  other  side,  must  con- 
clude ivith  a  verification,  even  though  it  should  be  nega- 
tive in  its  form. 

It  seems  however  to  have  been  thought,  that,  where  the 
plea  is  negative  in  form,  the  conclusion  may  be  omitted 
altogether.     It  would  perhaps  be  better  so,  leaving  the 

Whether  the  similiter  be  added  or  not,  there  is  an  absurdity  in  stating 
the  thing  in  this  way,  which  much  obscures  the  rationale  of  the  sys- 
tem. 

If  there  be  any  difficulty  in  applying  the  rules  suggested  above,  it 
would  be  much  diminished  by  the  introduction  of  the  simpler  and  more 
intelligible  form  of  making  up  the  issue  by  the  literal  '■offer  to  prove?  and 
'  call  for  proof, ?  If  any  difficulty  then  remained,  it  must  be  because  of 
something  in  the  nature  of  the  particular  case.  If  so,  these  rules  would 
be  eminently  useful  in  such  cases.  The  question  of  the  onus  proband!, 
instead  of  springing  up  at  the  trial,  would  be  decided,  and  the  decision 
embodied  in  the  record,  before  the  issue  was  made  up.  In  other  cases, 
these  rules  would  do  no  harm :  though  they  might  do  no  other  good, 
than  to  do  away  an  ugly  blemish  and  a  mystery. 

A  corresponding  change  of  phrase  in  other  cases  would  be  of  less 
importance,  but  would  do  much  to  dissipate  the  fog  of  mystery,  and 
dispense  with  the  similiter.  Thus,  payment  being  plead  to  debt  on 
bond,  the  issue  would  stand  thus : 

Plea.    '  The  defendant  did  pay,  and  this  he  offers  to  prove.' 

Rep.    '  The  defendant  did  not  pay,  and  the  plaintiff  calls  for  proof 

Then  comes  the  Jury,  not,  at  this  day,  because  the  parties  agree  to  it, 
but  because  the  law  has  so  ordained  it.  Hence  the  ' ponit  se'  and 
'similiter'  are  superfluous. 

I  am  no  enemy  to  old  forms.  I  reverence  their  authors  too  much  not 
to  respect  them.  Besides,  they  are  great  helps  to  accuracy,  especially 
when  they  occur  in  the  body  of  an  instrument.  In  the  very  conclusion, 
however,  they  may  be  safely  changed,  and  I  should  be  pleased  to  see 
this  change,  because  I  have  seen  courts  embarrassed  for  the  want  of  it. 
Meantime,  I  beg  the  reader  to  understand,  that  the  present  formula  for 
making  up  the  issue  does,  in  fact,  mean  exactly  what  is  expressed,  in 
that  I  have  proposed.  My  wish  is,  that  the  record  should  express 
exactly  what  it  means.  Let  this  be  done,  and  the  rationale  of  a  demur- 
rer for  a  wrong  conclusion  becomes  manifest.  One  party  demurs, 
because  the  other  did  not  offer  to  prove  when  he  ought,  or  calls  for 
proof  when  he  had  no  right  to  do  so,  or  delays  the  call  for  proof  when 
offered. 


208  THE    PRINCIPLES    OF    PLEADING. 

adverse  party  to  deny,  by  pleading  the  reverse  affirma- 
tively, with  a  verification ;  on  which,  in  all  such  cases, 
his  opponent  should  be  bound  to  tender  issue,  which  should 
be  joined  instanter.  In  this  way  no  time  would  be  lost ; 
and  the  pleadings  would  clearly  indicate  the  party  bearing 
the  onus  probandi,  and  against  whom  the  verdict  must  be 
found,  in  default  of  proof. 

But  this  is  not  the  laiv.  The  conclusion  must  be 
according  to  the  rule  given  above  in  Italics.  The  reason 
I  take  to  be  that  formerly  offered :  that  to  conclude  to  the 
country  a  new  proposition  in  negative  form,  would 
deprive  the  adversary  of  any  opportunity  to  reply  by 
way  of  confession  and  avoidance,  which,  to  all  new 
propositions,  he  has  a  right  to  do. 

I  deem  this  a  proper  place  to  say  all  that  I  propose  to 
say  of  special  demurrers.  As  they  are  taken  for  defects 
of  mere  form,  it  was  not  easy  to  explain  their  use  and 
reason  until  the  subject  of  form  had  been  gone  through. 
Now  here  we  find  a  case,  in  which  a  demurrer  for  want  of 
form  is  indispensable  to  justice,  and  the  rights  of  the 
demurrant.  A  wrong  conclusion  is  only  a  defect  of  form. 
And  yet,  if  either  party  can  preclude  his  adversary  from 
confessing  and  avoiding,  by  concluding  to  the  country, 
when  he  should  have  verified,  the  grossest  injustice  might 
be  done.  For  example :  an  action  accrues  to  a  boy  of  ten 
years.  When  he  arrives  at  full  age  he  sues.  The  defen- 
dant pleads  that  the  action  did  not  accrue  within  five 
years,  and  concludes  to  the  country.  Now  this  is  true. 
But  if  the  plea  is  allowed  to  stand,  the  plaintiff  must  join 
issue,  and  if  so  he  will  certainly  be  defeated.  He  must 
therefore  be  allowed  to  demur  for  want  of  form,  so  as  to 
force  (he  defendant  to  put  liis  plea  into  such  a  shape,  as 
that  lie  may  reply  non  age. 

So  a  plea  which  amounts  to  the  general  issue,  is,  of 
course,  good  in  substance.     But  if  the  plaintiff  joins  issue 


THE    PRINCIPLES    OP    PLEADING.  209 

upon  it,  a  verdict  in  Ids  favor  will  be  of  no  value,  though 
one  against  him  will  defeat  his  action.  This  is  an  ad- 
vantage the  defendant  ought  not  to  have,  and  nothing  but 
a  demurrer  for  want  of  form  could  deprive  him  of  it. 

I  have  little  doubt,  that,  if  we  knew  all  the  details  of 
the  early  history  of  pleading,  we  should  see,  that  there 
was  once  as  good  reason  for  allowing  demurrers,  for  all 
the  other  defects  of  form,  for  which  a  demurrer  might 
have  been,  and  still  may  be,  sustained.  But  the  best  way 
to  show  respect  to  the  authors  of  this  remarkable  system 
would  be,  no  longer  to  sustain  demurrers,  in  any  case, 
where  the  reason  for  doing  so,  whatever  it  may  have 
been,  has  ceased  to  exist,  or  to  operate.  It  is  on  this 
principle,  that,  while  I  propose  no  innovation  on  established 
forms,  I  venture  to  propose,  that  special  demurrers  shall 
no  longer  be  sustained  for  certain  defects  in  form. 

It  remains  to  add  that,  by  Statute,  the  demurrant,  if  he 
means  to  rely  at  all  on  any  defect  of  form,  must  append  to 
his  demurrer  a  schedule  of  all  such  defects  as  he  proposes 
to  insist  on. 

RULE  IX. 

In  all  pleadings,  where  a  deed  is  alleged,  under  which  the  party  claims  or 
justifies,  prof ert  must  be  made  of  such  deed. 

To  this  it  may  be  added  that  Executors  and  Adminis- 
trators must  make  profert  of  their  letters  testamentary  or 
of  administration. 

The  rule,  as  to  deeds,  does  not  embrace  writings  not 
under  seal,  nor  deeds  which  are  but  mentioned  by  way  of 
inducement,  nor  to  cases  (as  of  deeds  of  bargain  and  sale) 
where  it  is  not  the  intrinsic  operation  of  the  deed,  on 
which  the  party  relies.  Of  course  too  the  rule  is  to  be 
taken  as  qualified  by  that  already  spoken  of  which  excuses 
profert  of  a  deed  lost,  destroyed,  &c.  &e. 
18* 


210  THE    PRINCIPLES    OF    PLEADING. 

RULE  X. 

Pleadings  must  be,  properly  entitled  of  the  court  and  term. 

To  this  may  be  added,  'and  of  the  cause  too.'  But 
this  entitling  is  no  part  of  the  pleading,  and  therefore  no 
demurrer  will  reach  the  defect.  The  rule  is  intended  to 
prevent  mistakes,  and  to  enable  the  clerk  and  adverse 
counsel  to  distinguish  the  pleading  from  mere  waste 
paper.  If  not  properly  entitled,  it  is  supposed  to  have 
escaped  the  notice  of  the  adversary :  and  if  he  enters 
judgment,  as  for  want  of  plea,  the  judgment  will  be  regu- 
lar. Hence  the  way  to  take  advantage  of  this  defect  is  to 
take  no  notice  of  the  plea.  If  it  be  demurred  to,  it  shows 
that  it  teas  not  overlooked,  and,  if  there  be  no  other  defect, 
the  demurrer  will  be  overruled. 

RULE  XL 

Pleadings  mttst  be  true. 

It  is  still  true,  that  no  judgment  can  be  given  on  the 
ground  of  any  allegation,  unless  it  be  admitted,  or  found 
to  be  true  by  the  oaths  of  twelve  men.  But  to  any  other 
purpose,  this  rule  is  a  dead  letter  in  Virginia.  By  our 
Statute  allowing  all  sorts  of  contradictory  pleas  to  be  filed 
together,  at  the  discretion  of  the  party,  a  premium  is 
offered  for  falsehood. 


THE    PRINCIPLES    OF    PLEADING.  211 

In  conclusion,  I  venture  to  make  some  suggestions,  which 
are  submitted  to  those,  who  have  power  to  change  the  law  by 
enactment,  or  mould  it  by  adjudication. 

In  some  particulars,  the  system  has  been  inconsiderately 
changed,  while  quoad  hoc  all  the  reasons  on  which  it  was 
founded  remain  in  full  force. 

In  other  particulars,  the  original  rules  and  forms  remain, 
while  the  reason  has  ceased. 

I  propose  no  more  than  to  restore  the  law,  in  cases  of  the 
first  sort,  and  to  adapt  it  to  the  changed  condition  of  things, 
in  the  others. 

1.  Of  the  first  sort  is  the  law  which  condemns  irregular 
judgments  as  absolute  nullities  to  be  set  aside  at  any  time.  So 
it  ought  to  be,  unless  we  mean  to  place  the  rights  of  men  at 
the  mercy  of  a  mere  ministerial  officer.  The  writ  of  error  coram 
nobis  is  superfluous  for  this  purpose.  Its  use  was  to  revive  the 
power  of  the  Judge  over  a  case,  when  the  original  writ,  having 
spent  its  force  in  a  Judgment,  was  functus  officio.  A  new  writ 
out  of  chancery  was  as  necessary  to  restore  his  jurisdiction, 
as  the  original  had  been  to  give  it.  Here  we  have  no  chan- 
cery to  issue  such  writs.  No  original  is  necessary  ;  but  the 
whole  subject  belongs  to  the  jurisdiction  of  the  Judge  ex  officio. 
A  writ  could  only  serve  as  a  notice  of  a  proceeding  about  to 
take  place,  to  set  aside  the  Judgment,  and  a  written  notice  to 
that  effect,  in  any  form,  would  answer.  This  is  the  practice 
even  in  England,  since  Originals  fell  into  disuse. 

2.  A  Judgment,  which  is  any  thing  but  an  expression  of  the 
conclusion,  which  the  law  does  actually  deduce  from  the 
facts,  which  stand  established  in  the  record,  is  a  monster  more 
formidable  than  any  destroyed  by  Hercules.  If  the  necessary 
facts  are  not  in  the  record,  no  judgment  can  be  given  but 
against  him  who  ought  to  have  alleged  them,  and  has  not  done 
so,  or  who  ought  to  have  proved  them  and  has  failed.  If  the 
facts  are  there,  I  shall  be  the  last  man  to  withhold  judgment, 
because  they  appear  informally.  Let  no  judgment  be  arrested 
for  any  defect  of  form,  but  let  the  Law  distinctly  disclaim  the 
absurdity  of  requiring  a  court  to  pronounce,  as  the  conclusion 
of  the  Law  from  any  state  of  facts,  a  conclusion  which  the 
Law  does  not  deduce  therefrom.   A  simple  enactment,  that  the 


212  THE    PRINCIPLES    OF    PLEADING. 

Court  shall  either  enter  judgment  according  to  the  very  right 
of  the  case,  as  collected  from  the  facts  established  in  the 
record,  or,  in  its  discretion,  require  the  parties  to  plead  de  novo, 
would  effectually  remedy  the  mischief. 

3.  No  judgment  should  be  arrested  and  no  demurrer  sus- 
tained for  any  of  the  following  defects  : 

1.  For  want  of  Defence  ;  with  its  '  when  &c.  where  &c.' 

2.  For  want  of  commencement. 

3.  For  want  of  venue,  or  laying  of  damages,  or  alleging 
production  of  suit. 

4.  For  want  of  certainty  of  time,  place,  quality,  or  value, 
except  where  it  may  be  necessary  to  prove  them  as  laid, 
or  for  want  of  the  words  '  with  force  and  arms.' 

5.  Because  the  matter,  though  plead  affirmatively,  is,  in 
substance,  a  traverse.  Instead  of  the  demurrer,  let  the 
party  be  ruled,  on  motion,  to  strike  out  and  traverse,  un- 
less the  Court,  in  their  discretion,  are  of  opinion,  that 
justice  will  be  promoted. by  letting  the  plea  stand.  But 
let  the  party  so  pleading  be  laid  under  a  rule,  to  confess 
judgment,  if  his  plea  shall  be  traversed  and  the  finding 
be  against  him.  For  the  reasons  of  this  see  ante  Sect. 
V.  R.  III.  These  reasons  do  not  apply,  where  the  plea 
is  answered  by  way  of  confession  and  avoidance,  for,  on 
such  answer,  an  issue  will  arise,  which  will  decide  the 
case  either  way.  This  sort  of  proceeding  would  get  rid 
of  all  the  quibbles  of  the  Law  of  Color  and  special  Trav- 
erse.    See  Appendix. 

6.  Because  a  plea,  negative  in  form,  but  not  amounting  to  a 
traverse,  does  not  conclude  either  with  a  verification  or 
to  the  Country.  To  such  a  plea  when  well  pleaded,  if 
the  other  party  traverses  by  affirming  what  has  been  de- 
nied, let  him  conclude  with  a  verification,  and  let  issue 
be  joined  instantly,  the  traverse  and  similiter  being  add- 
ed, as  the  similiter  generally  is,  as  a  matter  of  course, 
and  both  at  the  same  time.  In  this  way  he  who  tenders 
proof  on  the  record  will  always  be  the  party  who  must 
produce  it,  and  thus  the  question  of  the  onus  probanda  will 
be  decided  as  i(  (Might  to  be,  before  the  parties  go  to 
prepare  for  trial. 


THE    PRINCIPLES    OF    PLEADING.  213 

7.  Because  a  traversable  matter  is  laid  under  a  quod  cum. 
Whenever,  in  any  way,  the  quod  cum  is  brought,  or  comes 
to  the  notice  of  the  Court,  let  it  be  stricken  out. 
4.  Inconsistent  pleas  should  not  be  allowed.     The  party 
should  be  required  to  strike  out  one  or  the  other. 


The  reader  has  a  right  to  expect  some  explanation  of  the 
singular  fact,  that,  in  a  work  assuming  to  be  an  exposition  of 
the  principles  of  pleading,  I  have  not  cited  a  single  authority, 
nor  adverted  to  any  opinion  or  adjudged  case,  but  for  the  pur- 
pose of  controverting  it. 

The  explanation  is  this.  The  work  owes  its  existence  to 
an  attempt  to  put  on  paper,  for  the  use  of  my  class,  just  what 
I  was  in  the  habit  of  saying  to  them  in  a  library,  where  each 
held  in  his  hand  a  text  book  on  which  I  commented,  and 
which  referred  to  the  authorities  by  which  we  were  surrounded. 
Writing  for  them  alone,  and  without  a  view  to  publication, 
any  reference  of  my  own  was  superfluous.  My  aim  being  to 
explain  what  they  were  reading,  it  would  be  idle  to  refer  to  the 
very  writers  to  be  explained. 

The  idea  of  publication  was  first  suggested  by  the  approba- 
tion and  advice  of  one,  whose  competency  to  judge  dispelled 
all  diffidence.  In  pursuance  of  that  advice,  the  work  has  been 
thrown  before  the  public,  in  the  shape  in  which  it  met  his 
approbation,  without  correction  or  revision.  It  proposes  little 
more,  than  to  prepare  the  mind  of  the  student  to  understand 
what  he  may  read  in  other  books,  and  to  awaken  the  attention 
of  Lawgivers  and  Judges  to  the  importance  of  the  restoration 
of  so  much  of  the  system  of  pleading,  as  is  suited  to  the  con- 
dition of  things  among  us,  to  the  constitution  of  our  courts, 
and  to  the  present  state  of  the  Law  of  Right. 

The  idea  of  composing  a  work  of  authority  never  entered 
into  my  head.  This  disclaimer  is  often  made  by  those  who 
have  no  mind  to  be  taken  at  their  word.  My  sincerity  cannot 
be  doubted  when  I  add,  that  no  modern  treatise  on  the  Law 
can  be  an  authority,  and  that  I  neither  fill,  nor  have  filled,  any 


214  THE    PRINCIPLES     OF    PLEADING. 

judicial  station,  which  should  give  a  sanction  to  my  opinions. 
I  do  not  even  claim  so  much  credit  with  the  public,  as  to  think 
that  implicit  confidence  would  be  due  to  the  accuracy  of  any 
abstract  of  a  case  which  I  might  bring  to  my  support.  So  far 
then  as  the  name  of  the  writer  may  give  authority  to  a  work, 
mine  might  as  well  be  anonymous  ;  and,  that  it  may  be  all  of 
a  piece,  I  have  chosen  to  leave  the  details  in  the  same  condi- 
tion with  the  collective  whole. 

Yet  I  will  not  affect  to  believe,  that  my  words  will  pass 
away  like  the  idle  wind,  '  heard,  not  regarded.'  I  flatter  my- 
self that  the  reader  has  seen,  in  this  work,  much  that  he 
thinks  entitled  to  some  consideration. 

That  which  I  have  endeavored  to  exhibit  as  the  original 
system  of  pleading,  is  a  thing  which  it  would  be  difficult  to 
verify  by  authentic  history.  It  is  a  sort  of  fossil  remnant  of 
that  which  has  been ;  and,  like  the  skeleton  of  the  mammoth, 
it  is  made  up,  in  part,  of  what  I  have  succeeded  in  exhuming, 
and,  in  part,  of  additions  of  my  own,  shaped  to  supply  defi- 
ciencies. For  the  truth  of  these  T  refer  to  the  symmetry  of 
the  whole.  In  the  skeleton  of  the  mammoth,  I  understand 
that  some  joints  of  the  spine,  some  ribs,  perhaps  a  thigh  bone, 
are  represented  in  this  way.  But,  if  all  the  joints  as  they 
stand  make  a  complete  spine,  if  the  ribs  supplied  bear  the  due 
proportion  to  the  rest,  and  if  the  artificial  thigh  bone  is  exactly 
like  its  fellow,  no  man  will  trouble  himself  to  distinguish  the 
original  bone  from  the  supplementary  wood.  He  sees  enough 
to  convince  him,  that  an  animal,  of  just  such  a  frame  as  he 
sees  before  him,  did  once  live  and  move,  in  this  breathing- 
world,  performing  all  the  functions  for  which  he  was  fitted  by 
his  conformation. 

I  cheerfully  submit  my  work  to  the  same  test.  If  the  rea- 
der shall  see,  in  that  for  which  he  finds  no  authority,  an  in- 
congruity with  other  parts  verified  by  authority,  he  will  be 
right  to  condemn  me,  as  an  impostor,  who,  having  stuck  on  a 
click  s  spur  to  the  head  of  a  frog,  exhibits  it  to  the  world  as  a 
genuine  horned  frog.  But,  if  he  sees,  in  every  part,  that 
perfect  con  gi  nil  v.  which  I  flatter  myself  he  will  discover,  I 
then  beg  of  him.  for  his  own  sake,  to  accept  the  whole,  ;is  a 
true  exhibition  of  the  mosl  remarkable  system  of  remedy  for 


THE    PRINCIPLES     OF    PLEADING.  215 

rights  and  wrongs,  that  the  world  has  ever  seen  put  in  practice 
I  say  for  his  own  sake,  not  for  mine  :  for  I  would  rather  be 
regarded  as  the  author  and  inventor  of  the  system  sketched  in 
these  pages,  than  be  acknowledged,  by  all  the  learned,  as 
the  most  profound  antiquarian  that  ever  toiled  among  the 
dust  and  rubbish  of  dead  centuries. 

In  other  respects,  I  have  chosen  to  abide  the  judgment  of 
those  qualified  to  judge,  on  the  arguments  I  have  olfered,  in 
support  of  opinions,  where  authority  is  either  silent,  or  against 
me.  In  such  cases,  the  opinions  of  a  nameless  writer  are  of 
no  value.  But  argument  differs  from  opinion,  as  the  force  of 
gunpowder  from  the  strength  of  a  bow.  The  arrow  is  harm- 
less in  the  hands  of  one,  who  has  not  strength  to  pull  the  string. 
But  the  bullet  will  go  its  errand,  and  do  its  work,  though  the 
finger  that  touches  the  trigger  be  that  of  a  child.  Whoever 
is  not  convinced  by  my  arguments,  will  reject  my  conclusions. 
Better  so,  than  if  I  had  given  the  result,  as  the  dictum  of 
Hale  or  Holt,  to  whose  authority  he  might  feel  bound  to  sur- 
render the  exercise  of  his  own  faculties.  But  if  he  feels  the 
force  of  what  I  urge,  then,  whether  he  will  or  no,  it  will  si7ik 
into  his  mind;  and  he  will  succumb  to  his  convictions,  though 
wrought  by  an  instrument,  that  may  seem  as  contemptible,  in 
the  eyes  of  men  armed  with  authority,  and  clothed  in  all  the 
panoply  of  learning,  as  a  sling  and  a  stone  in  the  hand  of  a 
Shepherd's  boy. 


APPENDIX. 


In  the  foregoing  essay,  I  have,  more  than  once,  intimated 
the  opinion,  that  the  administration  of  Justice  and  the  settle- 
ment of  disputed  points  of  Law  would  be  facilitated,  if  all 
actions  could  be  brought  under  the  discipline  of  special  plea- 
ding. The  much  controverted  doctrine  of  Fraud  in  Laiv,  or 
as  it  is  called  by  our  Court  of  Appeals,  (inverting  the  language 
of  the  cases  they  rely  on,)  Fraud  per  se,  remains  unsettled, 
because  the  action  of  Detinue,  in  which  it  commonly  presents 
itself,  admits  of  no  plea  but  non  detinet.  To  illustrate  the  val- 
ue of  special  pleading,  I  have  contrived  the  record  of  a  case, 
in  which  the  Court  are  supposed  to  have  indulged  the  defen- 
dant with  leave  to  plead  a  special  plea,  for  the  reasons  set 
forth  under  Sect.  5,  Rule  3. 

We  presuppose  a  declaration  in  detinue,  Doe  vs.  Roe,  for  a 
Slave  named  Tom. 

Plea.  The  said  Richard  says,  that,  long  before  the  bring- 
ing of  this  suit,  to  wit  on  the  day  of  in  the  County  of 
York,  a  certain  Peter  Jones  was  possessed  of  the  Slave  in  the 
declaration  mentioned,  as  of  his  own  proper  goods  and  chat- 
tels, and  that  the  Sheriff  of  the  said  County,  by  virtue  of  a 
writ  of  fieri  facias  to  him  directed,  issued  from  the  Clerk's 
office  of  the  County  Court  of  the  said  County,  in  pursuance  of 
a  Judgment  of  the  said  Court,  before  that  time  rendered,  in 
favor  of  a  certain  James  Smith  against  the  said  Peter  Jones, 
whereby  the  said  Sheriff  was  commanded,  of  the  goods  and 
chattels  of  the  said  Peter,  to  cause  to  be  made  a  sum  of  mon- 
ey in  the  said  writ  mentioned,  then  and  there  levied  the  same 
on  the  said  Slave  Tom,  as  of  the  goods  and  chattels  of  the 
said  Peter,  by  taking  the  said  Slave  into  his  possession.  And 
19 


218  APPENDIX. 

the  said  Richard  farther  says  that  afterwards  to  wit  on  the 
day  of  ,  at  the  said  County  of  York,  the  said  Sheriff,  by 

virtue  of  the  said  execution,  exposed  the  said  Slave  to  sale, 
to  the  highest  bidder,  by  public  outcry  :  and  the  said  Richard 
farther  says,  that,  at  the  said  sale,  he,  the  said  Richard,  was 
the  highest  bidder,  and  so  became  the  purchaser  of  the  said 
Slave,  from  the  said  Sheriff,  for  a  large  sum  of  money,  to  wit 
the  sum  of  five  hundred  dollars  ;  whereupon,  and  by  virtue  of 
which  sale,  the  said  Sheriff,  then  and  there,  delivered  the  said 
Slave  to  the  said  Richard,  and  this  he  is  ready  to  verify, 
wherefore  he  prays  judgment,  if  the  said  John  his  action 
aforesaid  against  him  ought  to  have  and  maintain. 

To  this  we  may  suppose  a  special  demurrer,  (because  the 
plea  amounts  to  the  general  issue,)  on  which  the  Court  refuses 
to  give  judgment,  for  the  reason  given  in  Hobart  127,  to  wit, 
that  the  plea  is  intended  to  present  to  the  Court  a  matter  of 
law.     Thereupon  the  plaintiff  replies  thus  : 

Replication.     The  said  John  says,  that,  before  the  writ  of 
fieri  facias,  in  the  plea  of  the  defendant  mentioned,  came  to 
the  hands  of  the  said  Sheriff  of  York  County,  to  wit  on  the 
day  of  in  the  said  County  of  York,  the  said  Peter 

Jones,  for  and  in  consideration  of  a  large  sum  of  money,  to 
wit  the  sum  of  five  hundred  dollars,  by  the  said  John  to  the 
said  Peter  then  and  there  in  hand  paid,  sold  and  delivered  the 
Slave  in  the  declaration  mentioned  to  the  said  John  :  and  this 
he  is  ready  to  verify.     Wherefore  he  prays  Judgment.  &c.  &c. 

Rejoinder.  And  the  said  Richard  says,  that,  after  the 
sale  of  the  said  slave,  by  the  said  Peter  to  the  said  John,  as 
in  the  replication  of  the  said  John  is  above  set  forth,  the  said 
slave  continually  remained  in  the  house  of  the  said  Peter,  in 
the  said  County  of  York,  and  in  the  possession  of  the  said 
Peter,  until  the  time  when  the  said  slave  was  taken  in  execu- 
tion, by  the  Sheriff  of  the  said  County,  as  by  the  said  Richard, 
in  his  plea  is  above  alleged  :  and  this  he  is  ready  to  verify. 
Wherefore  he  prays  judgment,  &c.  &c. 

This  plea  being  demurred  to,  if  the  demurrer  be  sustained, 
then  the  doctrine  of  Edwards  vs.  Harben.  'that  possession  by 
the  vendor  is,  per  se,  fraud  in  law,'  is  at  once  and  forever  over- 
ruled :   but,  if  the  demurrer  be  overruled,  then  is  that  maxim 


APPENDIX.  219 

once  and  forever  established.  It  is  supposed  to  be  overruled, 
and  then  comes  the 

Surrejoinder.  And  the  said  John  says,  that,  presently 
after  the  sale  of  the  said  slave,  by  the  said  Peter  to  the  said 
John,  and  at  the  same  day  and  place,  when  and  where  the 
said  Peter,  as  above  stated,  sold  the  said  slave  to  the  said 
John,  the  said  slave,  by  the  visitation  of  God,  became  griev- 
ously sick,  so  that  his  life  was  greatly  despaired  of ;  by  reason 
of  which  sickness,  the  said  John  was  advised  by  a  certain 
John  Mercer,  a  doctor  of  Medicine,  engaged  in  the  practice 
thereof,  and  skilled  in  the  healing  art,  that,  to  remove  the  said 
slave  from  the  house  of  the  said  Peter,  would  be  to  expose  the 
life  of  the  said  slave  to  great  and  manifest  danger ;  and  be- 
cause, at  that  time,  the  necessary  business  of  the  said  John 
required  his  presence  at  the  City  of  Richmond  and  elsewhere, 
the  said  John  forthwith  departed  from  the  house  of  the  said  Pe- 
ter, to  attend  to  the  same,  and  continued  absent  therefrom,  by 
reason  of  his  said  attendance  on  his  necessary  business,  until 
after  the  time  when  the  said  slave  was  taken  by  the  Sheriff  of 
York  County,  as  by  the  said  Richard,  in  his  plea  first  above 
pleaded,  is  alleged  :  and  this  he  is  ready  to  verify  :  wherefore 
he  prays,  &c. 

To  this  again  there  is  a  demurrer.  If  it  be  overruled,  then 
it  is  established,  that  although  'the  possession  of  the  vendor 
is,  per  se,'  (that  is  by  itself — without  any  thing  to  aggravate 
or  extenuate,  or  in  any  wise  to  modify  it ;  for  such  is  the 
meaning  of  the  expression,)  '  Fraud  in  Law '  yet,  that,  l  taken 
in  connection  with  such  facts  as  those  set  forth  in  the  surre- 
joinder, it  is  not  Fraud  in  Law.'  This  would  settle  one  point, 
on  which,  as  yet,  we  have  nothing  but  the  obiter  dictum  of  one 
Judge.  Let  the  demurrer  be  sustained,  and  the  law  would  be 
as  clearly  settled  the  other  way ;  and,  no  matter  how  much 
the  judges  might  '  darken  counsel  by  a  multitude  of  words,' 
the  exposition  of  the  law  implied  in  a  silent  Judgment  for  the 
plaintiff,  or  for  the  defendant,  would  be  too  plain  to  be  mis- 
taken. 

Half  a  dozen  records  precisely  like  this,  except  in  the  surre- 
joinder, which,  in  every  instance,  might  set  forth  a  different 
case,  would  cover  the  whole  debateable  ground  •  and  every 


220  APPENDIX. 

body  would  know,  that  the  simple  fact  of  possession  by  the 
vendor,  is,  per  se,  fraud  in  Law  ;  and  every  body  might  know 
what  other  facts,  coupled  with  that  fact,  would  leave  the 
legal  effect  thereof  unchanged,  and  what  other  facts  would 
take  from  it  the  character  of  Fraud  in  Law. 

One  such  record  would  throw  more  light  on  the  subject, 
than  one  thousand  pages  of  Judicial  essays  about  Fraud  per 
sc,  and  labored  attempts  to  explain,  how  that,  which  is  so 
emphatically  denounced  as  a  sort  of  fraud  par  excellence,  may 
be,  all  the  time,  no  fraud  at  all,  but  a  perfectly  fair  transaction. 


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